Southern Downs Regional Council v Kemglade Pty Ltd
[2014] QPEC 19
•8 May 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Southern Downs Regional Council v Kemglade Pty Ltd & Anor [2014] QPEC 19
PARTIES:
SOUTHERN DOWNS REGIONAL COUNCIL
(applicant)and
KEMGLADE PTY LTD ACN 010 840 365
(first respondent)and
JAN IDEC
(second respondent)FILE NO/S:
1066/14
PROCEEDING:
Application for costs
ORIGINATING COURT:
Planning & Environment Court of Queensland at Brisbane
DELIVERED ON:
8 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
Written submissions following substantive orders
JUDGE:
RS Jones DCJ
ORDER:
The first and second respondents are to pay the applicant’s costs of the application.
CATCHWORDS:
COSTS – where costs of the proceeding are in the discretion of the court but follow the event unless the court orders otherwise – whether circumstances existed warranting departure from the general rule that costs follow the event – whether circumstances existed justifying depriving the successful applicant of its costs of its application
Sustainable Planning Act 2009
Uniform Civil Procedure Rules 1999
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Kilvington v Grigg & Ors (No 2) [2011] QDC 37
REPRESENTATIVES:
The second respondent in person for the first and second respondents
Connor O’Meara Solicitors for the applicant
For the reasons set out below, the order of the court is that the first and second respondents are to pay the applicant’s cost of its application.
Background
The first respondent was at all material times the registered proprietor of land situated at 229 Granite Belt Drive, Thulimbah, and the second respondent was the sole director of the first respondent. The subject land was located within the Rural Zone of the applicant’s planning scheme.
Located on the land were a number of buildings including a guesthouse, reception/café/wine tasting building and three cottages (collectively referred to as “the buildings”). To facilitate the use of the land for non-rural purposes the land had the benefit of two conditional approvals, the first issued in 2006 and the second in 2010. At a date unknown, but before 19 March 2014, the respondents commenced using the land for the purpose of providing non-resident, casual work force accommodation. To maximise the number of temporary workers who could be accommodated on the land not only were some of the existing buildings put to that use, but a large marquee or tent was erected on the land. Up to 74 beds were initially located, intended to provide for sleeping accommodation for up to 74 persons, most of whom were located in the tent. In respect of the existing buildings the applicant alleged that the three existing cottages were used to provide sleeping accommodation. The guesthouse was used to provide facilities for the temporary workers including toilets, showers, cooking facilities and communal recreational areas and some sleeping accommodation. The reception/café/wine tasting building was used to provide a communal area for the workers and also for some sleeping accommodation.
It is uncontroversial that at no time had the applicant (or its statutory predecessor, the Stanthorpe Shire Council) granted a development permit which authorised the use of the land to provide accommodation for temporary workers.
In its Originating Application it was pleaded that the unauthorised use constituted a development offence being a contravention of s 578 of the Sustainable Planning Act 2009 and, further, that the use contravened a number of the conditions imposed by the 2006 and 2010 approvals, which had nothing to do with the accommodation use to which the land was put at the material time.
The matter came before me on 3 April 2014. None of the assertions raised in the applicant’s pleadings, nor in its supporting material, were challenged by the respondents on that occasion. Indeed, on that day the respondents consented to the enforcement orders made which relevantly:
(i) required the respondents to immediately cease providing accommodation to any persons and to have the tent removed from the land by 4 p.m. on 4 April 2014;
(ii) restrained the use of the land for providing accommodation to any persons until there was a development permit authorising the use or, if development was carried out under the 2006 and/or 2010 approvals, the conditions of those approvals were complied with.
On 3 April 2014 the applicant indicated its intention to pursue costs and it was agreed that the parties would provide written material in that regard. Written material was received from solicitors for the applicant and on behalf of the respondents, material was forwarded by email on 22 and 28 April 2014. An affidavit sworn by the second respondent asserting that the submissions made “are now sworn…” was received on 5 May 2014. While the respondents were legally represented in the proceedings before me on 3 April 2014, Mr Idec made submissions on behalf of himself and the first respondent.
Costs
Section 457(9) of the SPA relevantly provides:
“(9) Costs of a proceeding mentioned in section 601, including an application in a proceeding mentioned in that section, are in the discretion of the court but follow the event, unless the court orders otherwise.”
That is to be contrasted with subsections (1), (2) and (3) of s 457 which, in effect, provide that the costs of a proceeding or part of a proceeding are in the discretion of the court and, that in the exercising of that discretion the court may have regard to any matter it considers relevant but, pursuant to subsection (2), the court’s attention is drawn to 12 specific matters. The substantive proceeding was one mentioned in s 601 of the SPA.
The wording of s 457(9) makes it tolerably clear that what Parliament intended was that in respect of proceedings brought under s 601, costs should follow the event unless the court in the exercise of its discretion, considered that there were sufficient reasons to deprive the successful party of its costs. Save for the reference to “proceedings mentioned” in s 601 of the SPA, s 457(9) mirrors the wording used in r 681 of the Uniform Civil Procedure Rules 1999.
In exercising its discretion to award costs, it is necessary to bear in mind that, generally speaking, costs are not ordered against the unsuccessful party as some form of punishment. The primary purpose of cost orders is to indemnify the successful party in respect of the expenses it had to incur in either successfully prosecuting or successfully defending a proceeding. That costs follow the event is an expression often referred to as the “usual order as to costs”. In Oshlack v Richmond River Council[1] McHugh J, with whom Brennan CJ agreed, relevantly said:
“The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”
[1][1998] HCA 11 at paras 67 and 68.
After a careful consideration of a number of authorities, Judge McGill in Kilvington v Grigg & Ors[2] relevantly said:
“In my view, the particular wording of the applicable Queensland rule (i.e. Rule 681 of the UCPR) must be kept in mind, and that it differs from the provisions in England and in other states discussed in many of the modern authorities. Accordingly, here a more traditional approach is appropriate. The effect of this is that the starting point is that costs follow the event and the question is whether there is a sufficient reason to depart from that position to any extent. In deciding whether a departure is justified in a particular case, it is important to bear in mind the fundamental principles of fairness favouring the prima facie approach stipulated by the rule, so a court will hesitate before departing from it and will depart only in unusual cases. …”
[2](No 2) [2011] QDC 37 at para 37.
In Kilvington Judge McGill placed a limit on the extent of cost orders made against the unsuccessful plaintiff due to what his Honour described as some aspects of inefficient conduct of the proceedings by the successful party. That approach was entirely consistent with the observations of McHugh J in Oshlack, where his Honour relevantly said:[3]
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’
‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.”
[3]At para 69.
Discussion
The first thing to note is the applicant was entirely successful in its application and, as already mentioned, the respondents made no attempt to defend the proceeding. Prima facie then, there can be little doubt that the applicant is entitled to a favourable cost order. The second thing to note is that there is, in my view, no conduct on the part of the applicant which would cause it to be deprived of a favourable cost order.
The conduct of the respondents not only constituted a development offence for the purposes of the SPA but also created an environment hazardous to the health and safety of those using the accommodation. That is particularly so in regard to the risk of fire in the tent. There is sufficient evidence to establish that the accommodation provided in the tent exposed the occupants to a real risk of serious injury, if not death, caused by fire. In this regard I accept the applicant’s submission to the effect that the respondents’ conduct was both unlawful and flagrant and exposed numerous innocent people to an immediate threat.
It is to the credit of the respondents that they consented to the orders made by the court and thereby assisted in the administration of justice. However, in saying this it must be recognised that the position of the respondents could fairly be described as being a hopeless one.
In Mr Idec’s initial written submissions he made a number of assertions, none of which were supported by any evidence. He asserted that the proceedings brought by the applicant were “absolutely unnecessary”. I disagree. I am satisfied that had the applicant not acted in the way it did the development breach would have continued at least into the foreseeable future.
The respondents initially relied on a number of matters, none of which were to any meaningful extent supported by evidence, which included that they did not consider any of the backpackers to be in danger. It is clear from the evidence that at the very least, the occupants of the tent were clearly in danger and, I am also reasonably satisfied, that any reasonable person would have recognised that danger. Mr Idec said, “I swear that no person resided (sleeping) in the buildings at all. The tent was erected by the hire company and does comply, we at the time believed that we had attended to all safety measures and removed the doors from units where the bathrooms were used.” None of those assertions were supported by affidavit material. In any event, even if those assertions were accepted as true, the use of the tent for accommodation purposes was clearly still unlawful and constituted a development offence.
It was also asserted on behalf of the respondents that “on the evening of 19 March 2014 Ms Vicky Sawyer of the council instructed the backpackers and their boss to vacate the site, or the police would be called to forcibly remove them, when I became aware of this on the morning of 20 March I advised the backpackers that they could no longer use the building or the tent, they agreed to move.” This unsworn assertion was made, as I understand it, to also support the contention that the bringing of the enforcement proceedings was unnecessary. I do not accept the submission. The evidence of Ms Sawyer[4] satisfies me that while she may have advised the second respondent that the use of the land was an unlawful one she did not instruct any backpackers and/or their “boss” to vacate the site. Further, I accept Ms Sawyer’s evidence to the effect that when she spoke to the second respondent on 19 March 2014 it was still being contended that the accommodation use to which the land was being put was in fact a lawful use.
[4]Affidavit of Vicki Lenore Sawyer sworn 24 April 2014.
Also, even if it were the case that the second respondent advised the backpackers that they could no longer use the building or the tent and that they agreed to move on 20 March 2014, the applicant was not advised of that. As far as the applicant was concerned, as a consequence of the inspection of Ms Sawyer on 26 March 2014 the tent still contained 31 beds which appeared to be have been used with bedding scattered on the beds and suitcases and other personal effects of likely occupants were also observed. Even if it were the case that on 20 March 2014 the second respondent told the backpackers that they had to vacate the premises in circumstances where that information was not conveyed to the applicant (and there is no assertion that it was), I fail to see how it could be maintained that the Council’s actions were unnecessary. In any event in this regard I prefer the sworn evidence of Ms Sawyer. In her affidavit she relevantly deposes:
“I note that in the respondents’ submissions it is suggested that on 20 March 2014 Mr Idec ‘advised the backpackers that they could no longer use the building or the tent, they agreed to move’. If Mr Idec had in fact advised the persons on the land of these matters, the Council was never informed.
Mr Idec has never communicated to me, or to my knowledge any other Council officer, an intent to cease the use of the land after 19 March 2014. Nor have I, or to my knowledge any other Council officer received any communication from anyone else on behalf of the respondents suggesting an intention to cease the use of the land. Indeed when I returned to the land seven days later, on 26 March 2014 … whilst some of the beds had been removed from the tent I still counted 31 beds within the tent that appeared to be in use given the bedding scattered on the beds and the suitcases and personal effects located near and on the beds and there were a number of persons of Asian appearance still occupying on the land.”
It is significant that in the further submissions made by the second respondent that in respect of the factual matters raised by Ms Sawyer, while there were some attempts to explain them away[5] there was no attempt to deny the allegations of fact. I do not find any of the explanations convincing.
[5]See for e.g. paras 4, 5, 6 and 7.
In paragraph 7 of the further submissions of the first respondent it is asserted that on 19 March 2014, Ms Sawyer “took control of the situation”. In paragraph 10 it is then asserted that had Ms Sawyer directed the first respondent on the 19th that the tenants had to go, instead of the advising the tenants and their employer, “we would have had the backpackers out and the marquee removed by at maximum (sic) the following Monday”. I cannot accept that proposition. It is not only at odds with Ms Sawyer’s version of what occurred on that date but also with two emails sent by the second respondent on 20 and 31 March 2014: the first to Ms Sawyer; the second to Mr Connor, solicitor for the applicant. They stated:
“Hello Vicki,
Some of our guests have advised that they were instructed to move away from the site by either yourself or the firemen.
Please advise as to who gave this instruction and on what basis.
We made a commitment to a contractor that we would accommodate his people last year, we have since encountered further problems with the building and are not in a position to seek a final for the building, hence the marque.
Is it fair to understand that if we had a function on site and people drank to (sic) much we would have to obtain a permit to allow them to sleep in the marque.
Please advise as soon as possible as I am on sick leave and cannot cope with the stresses being inflicted as a result of my fulfilling an obligation to a fellow businessman.”
and on the 31st
“Kemglade P/L has advised that you have delivered some legal material to them.
Our guests at 229 Granite Belt Drive Thulimbah have advised that Ms Vicki Sawyer gave them notice to vacate the marque erected on the property, she also indicated that she would have the police forcibly remove them if they did not vacate voluntarily, this information has come from several persons. Unfortunately, we do not have a copy of the order, in fact we have no emails, telephone messages or letters to enable us to act and assist her.
Please send through the names of the responsible persons Ms Vicki addressed, one of our voluntary workers was on the site on the same evening (an Australian), nothing was mentioned to him about the backpackers having to vacate. My phone number is clearly illustrated on the front of the residence, no message have been left until now. Please make Ms Sawyer aware that, though most of the guests have moved to other accommodation, we are at a loss to understand our position as Ms Sawyer took charge of the situation, does she propose to give the remaining backpackers another notice or have the police put them on the street? there seems to be a shortage of legal accommodation in the area. We believe that some notice should be given as has been the case where other backpackers have breached, this will allow them to inform their employers about their situation.”
Conclusions
On the material before me I am satisfied of the following:
1. That the respondents had committed a flagrant development offence.
2. Absent intervention by the applicant that unlawful use of the land would have continued.
3. The proceedings brought were necessary to prevent not only an unlawful activity continuing but also to remove a use which was dangerous to the occupants..
4. There is no conduct which can be pointed to on the part of the applicant which would justify departing from the ordinary rule as to costs.
5. None of the matters raised by the respondents in their material warrants departure from the usual rule as to costs.
Accordingly, the order of the court is that the respondents are to pay the applicant’s cost of its application.
2
2