Stevenson Group Investments Pty Ltd v Nunn

[2010] QPEC 114

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Stevenson Group Investments Pty Ltd v Nunn & Ors [2010] QPEC 114

PARTIES:

Stevenson Group Investments Pty Ltd ACN 101 112 127
(Applicant)

and

Graham Nunn
(Respondent )

and

Codd Stenders (First Respondent)

and

Tangalooma Pty Ltd ACN 010 997 707
(Second Respondent)

and

Tangalooma Island Resort Pty Ltd ACN 010 170 902
(Third Respondent)

and

Brisbane City Council
(Fourth Respondent)

and

RJ & RM Lever Pty Ltd
(Fifth Respondent)

and

Chief Executive, Department of Infrastructure & Planning
(Sixth Respondent)

and

GM & JM McMahon (Trustee)
(Seventh Respondent)

and

LWH & JA Davis
(Eighth Respondent)

and

GW Simmons (Trustee)
(Ninth Respondent)

And

PR & E Hatherell
(Tenth Respondent)

and

PAG & RJ Arnoud
(Eleventh Respondent)

and

Hidebourne Pty Ltd ACN 010 652 436 (Trustee)
(Twelfth Respondent)

and

WJ Williams
(Thirteenth Respondent)

and

R Shaw & SA Hawkins (Trustee)
(Fourteenth Respondent)

and

K & N Geddes Pty Ltd ACN 098 970 631 (Trustee)
(Fifteenth Respondent)

and

Chief Executive, Department of Community Safety
(Sixteenth Respondent )

and

Tangalooma Photo Shop Pty Ltd ACN 113 674 427
(Seventeenth Respondent)

and

Tangalooma Moreton Island Resort ACN 122 809 812
(Eighteenth Respondent)

FILE NO/S:

1861 of 2009

DIVISION:

Planning & Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

02 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

08 February 2010

JUDGE:

Durward SC DCJ

ORDERS:

A. On the preliminary Issue:

1. Application refused;

2. The court does not have jurisdiction with respect to the declarations 2 and 3 of the applicant’s statement of claim;

3. The declarations 2 and 3 and paragraphs 66 through 84 in the applicant’s statement of claim are struck out;

B. On the costs issue:

4. Application refused;

C. Costs of these applications:

5. I will hear the parties as to costs.

CATCHWORDS:

PLANNING & ENVIRONMENT – DECLARATIONS – Certificate of Classification issued pursuant to standard Building Regulation 1993 – whether Court has jurisdiction to make declarations.

PLANNING & ENVIRONMENT – STATUTORY CONSTRUCTION – Section 4.1.21 Integrated planning Act 1997 – extent of power to make declarations.

PLANNING & ENVIRONMENT – LAND USE – Lawfulness – meaning.

PLANNING & ENVIRONMENT - COSTS – Allegation of default in procedural requirements of Court – section 4.1.23 integrated Planning Act 1997 – whether appropriate to award costs of interlocutory proceedings – exercise of discretion.

LEGISLATION

Sections 1.3.2 – 5; 3.1.3; 5.3.1 – 9; 4.1.21, 4.1.23 Integrated Planning Act 1997; Sections 457 & 818 Sustainable Planning Act 2009; Building Act 1975; Standard Building Regulation sections 3, 4, 11; Parts 8 & 9.

CASES

Cornerstone Properties Pty Ltd v Caloundra City Council [2005] QPELR 96; Devine Limited v State of Queensland [2004] QPEC 93; Netstar Pty Ltd v Caloundra City Council [2004] QCA 296; Elkins v Comino & Rockhampton City Council [2004]QPELR 485; Decca Pty Ltd v City of Adelaide(1982)52 LGRA 85; Kangaroo Point Residents Association v Brisbane City Council [2006] QPELR 471; Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council [2009] QPELR 66; Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council & Ors [2009] QPELR 70; Rix Super Pty Ltd  v Lewani Springs Resort Pty Ltd [2007] QPELR 135; CQ Innovations Pty Ltd v Cairns City Council [2009] QPELR 71; Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, planning and Women [2006] QPELR 714.

COUNSEL:

S J Keim SC for the applicant
G Gibson QC and M Johnston for the respondent, the first, second, third, fifth, twelfth and eighteenth respondents
M A Williamson for the fourth respondent

SOLICITORS: Clinton Mohr Lawyers for the applicant
Hopgood Ganim Lawyers for the respondent, the first, second, third, fifth, twelfth and eighteenth respondents
Brisbane City Legal Practice for the fourth respondent

1. The proceeding concerns Tangalooma Island Resort.  The applicant is the owner of six apartments in a building ("Deep Blue 1") in a development of three buildings known as Deep Blue 1, Deep Blue 2 and Deep Blue 3.  The respondents include the owner of the resort, the private certifier, the architect, some of the apartment owners, the Brisbane City Council and the Queensland Fire and Rescue Service.

The Applications

1. Some of the respondent parties are not actively concerned in the application. This proceeding concerns the owner of the resort, the private certifier, the architect, apartment owners and the Brisbane City Council.

1. The applications concern the jurisdiction of the Planning and Environment Court ("the Court") to hear and determine certain allegations in paragraphs 66 to 84 of the applicant's statement of claim relating to a certificate of classification (the "preliminary issue"); and the costs of and incidental to a part of the proceedings incurred by the respondent on the grounds that the applicant has defaulted in respect of procedural requirements of the court.

1. An amended statement of claim ("the statement of claim") was filed by leave on the hearing of the application.  The amendments do not materially affect the matters to be determined by the application.  A copy of the statement of claim is appended to and forms part of the reasons for judgment and reference should be made to the appended document other than where specific paragraphs are cited in the text of the judgment.

The Development

1. A development approval dated 98 November 1983 approved the use of a "tourist resort" subject to stated conditions, including that development of the subject site be "generally in accordance with" certain approved plans ("the Planning Approval"). On 10 May 2004 a Development Application was made for building works, including for three buildings known as Deep Blue 1, Deep Blue 2 and Deep Blue 3 ("the Development Application").  A building permit dated 28 July 2004 approved those building works ("the Building Permit").  On 01 November 2005, a Certification of Classification was issued in relation to Deep Blue 1, which was constructed in 2005 ("the Certificate of Classification").

Statement of Claim

1. The statement of claim includes allegations of facts and matters falling into three general categories: 

1.        The "Referral Agency Allegation" generally alleges a failure to properly refer the Development Application to the Queensland Fire and Rescue Service and that as a result the building permit is void (paragraphs 29-51).

2.        The "Planning Approval Allegation" generally alleges the Building Permit is void because it approved an application that is inconsistent with the Planning Approval (paragraphs 52-65).

3. The "Certification of Classification Allegation" generally alleges the Certification of Classification is void because Deep Blue 1 was not "substantially completed" as defined in s 92 of the Standard Building Regulation 1993 (the “SBR”) (paragraphs 66-84). It is the Certification of Classification Allegation that is the subject of the preliminary issue concerning jurisdiction.

1. The statement of claim seeks relief in the following terms:

"1. A declaration pursuant to s.4.1.21 Integrated Planning Act 1997 ("the IPA") that the building permit issued by respondent dated 28 July 2004 in respect of buildings known as buildings 1, 2 and 3 of Deep Blue stage 1 to be built at Village J within the Tangalooma Wild Dolphin Resort at Tangalooma on Moreton Island, so far as that certificate relates to building 1 of Deep Blue 1 stage 1 is void and of no legal effect;

2. A declaration pursuant to s.4.1.21 IPA that, consequent upon the first declaration, the certificate of classification issued by the respondent on 1 November 2005 in respect of building 1 of Deep Blue 1 stage 1 is void and of no legal effect;

3. In the alternative, the declaration pursuant to s.4.1.21 IPA that, in any event, a certificate of classification issued by the respondent on 1 November 2005 in respect of building 1 of Deep Blue stage 1 is void and of no legal effect."

The Defences

1. In their defences the respondents (referred to collectively) assert simply that the court has no jurisdiction to hear and decide the certificate of classification allegation by reason of s.4.1.21 IPA or to make the declaration sought pursuant to that section, because the declaration is not one of the matters listed in s.4.1.21 and the court has not been given the jurisdiction under IPA or any other Act: that is, the declaration does not relate to a matter done , to be done or that should have been done under IPA; the proper construction of IPA, a planning instrument or masterplan; nor the lawfulness of land use or development.

Issues

1. The second and third declarations sought by the applicant challenge the validity of a certificate of classification issued by the respondent, Mr Nunn, (Nunn) under the standard building regulations 1993 ("SBR").  The certificates were issued in November 2005 for building 1 of Deep Blue Stage 1.

1. Nunn was a private certifier for various purposes under the IPA and the Building Act 1975 ("Building Act").  The three declarations concern his conduct:

·     That in declaration 1, firstly he issued a development permit for a development, the issue being the timing of the referral to the Fire and Rescue Service but that is not involved in the preliminary issue; and secondly, the validity of the development permit is disputed in other respects (in consistency with the planning approval);

·     That in declaration 2, the certificate of classification is in dispute in respect of matters concerning the development permit. This dispute is not part of the preliminary issue, but in essence will stand or fall on the determination of the latter;

·     That in declaration 3, which is the subject of the preliminary point, the certificate of classification issued on 01 November is void.  

1. The issues in contention are whether the court has jurisdiction to grant declarations 2 and 3 and to determine the allegations contained in paragraphs 66 to 84 of the statement of claim, which relate to declaration 3.

The Preliminary Issue 

1. The preliminary issue framed by an order of his Honour Judge Rackemann is to determine "whether the court has jurisdiction to deal with allegations raised in paragraphs 66 through 84 of the statement of claim filed by the applicant on 30.10.09 relating to the certificate of classification”. 

1. For convenience, paragraphs 66 through 84 of the statement of claim are set out in Appendix 1 to this judgment.

Declarations

1. The applicant submitted that the court has jurisdiction pursuant to paragraph 4.1.21(1) (a) and (d) of the repealed Integrated Planning Act 1997 (the "IPA"), which continues to apply pursuant to s.818 of the Sustainable Planning Act 2009 (the "SPA").  The respondents object to the declarations on the ground that the Court has no power. 

"4.1.21   Court may make declarations 

(1)       Any person may bring proceedings in the court for a declaration about -

(a)       a matter done, to be done or that should have been done for this Act other than a matter for chapter 3, part 6, division 2; and

(b)       the construction of this Act in planning instruments in master plans under this Act; and

(c)       the construction of the land use plan under the Airport Assets (Restructuring And Disposal) Act 2008 and chapter 3, part 1 of that Act; and

(d)      the lawfulness of land use or development

………

(5)       The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1)”. 

1. However, ss 4.1.5A and 4.1.23(2) - that is, how the court may deal with matters involving substantial compliance and costs respectively - no longer apply to this proceeding: s 818(3) SPA.

Construction of s 4.1.21 IPA

1. The applicant's contention is that s 4.1.21(1) (a) is broad in its application and does not envisage that actions relating to the same land should be brought in two different Courts.

1. The leading authority on the construction of s 4.1.21 IPA is Cornerstone Properties Pty Ltd v Caloundra City Council [2005] QPEC 44; [2005] QPELR 96 at paragraphs [44] - [51] (“Cornerstone”).

1. The applicant submitted that the jurisdiction limitation inherent in the judgment of his Honour Judge Rackemann in Cornerstone should not be determinative of the preliminary issue in this case and that the broader approach taken in Devine Limited v State of Queensland [2004] QPEC 93 should be preferred. The applicant also sought to distinguish Netstar Pty Ltd v Caloundra City Council [2004] QCA 296, a decision of the Court of Appeal. I will discuss these authorities shortly.

Applicants Submissions

1. The applicant submitted that the certificate of classification process administered by the SBR was a code for the IDAS process in the IPA and provided a final step in the approval process established by the IPA: s 3.1.3 IDAS "is a system detailed in that chapter for integrating State and local government assessment and approval processes for development”; and s 3.1.3(4) IPA that deals with code and impact assessment.

1. In other words, there was a clear link between the two: the requirement for a development permit for development (for example, building work - sections 1.3.2 and 1.3.5 IPA) is created by the IPA and regulated by the SBR: ss 3 and 4 SBR.

1. Part of the regulatory process was the "compliance inspections" by - for example, a building certifier - to determine that the building work complies with the SBR "and the development permit for the work": s 11(1) SBR and s 3.5.13 IPA.

1. It was submitted that in order for a building certifier to form a view as to whether a building is "substantially completed" (ss 92 and 98 SBR) so that a certificate of classification can be issued, the building certifier must carry out the inspections contemplated by Part 8 of the SBR.

1. Section 92 SBR, so far as is relevant, provides as follows:

"S.92:  Meaning of substantially completed

(1)       In this part, a building is 'substantially completed' when -

….…

(e)       All fire safety installations are installed as required by this regulation and operational; and

….…

(i)        The building is structurally adequate as required by this regulation; and

(j)        All means of access and egress comply with this regulation; and

….…"

1. Part 3 of Ch 5 IPA (ss 5.3.1-5.3.5) sets up the private certification process for code assessable development applications. In effect a private certifier becomes the assessment manager.  The decision of an assessment manager must not conflict with the Building Act 1975 (s 3.5.13 (4) (a) IPA. Similarly, s 5.3.5 (4) (b) provides that a private certifier must not decide a development application if building work is to be assessed against a planning scheme and the SBR unless all necessary preliminary approvals are effective for the assessable aspects of the development, that is, for the building work.

1. The applicant submitted that paragraphs 78 and 79 of the statement of claim identified the aspects in which the Deep Blue 1 was not substantially completed and that they were aspects which a reasonable private certifier using reasonable methods would have detected:  the matters alleged in paragraph 78 - in summary, structural adequacy; fire safety installations; and safe means of access or egress - were regulated by the SBR in its role as an IDAS code and ought to have been subject to assessment for the purpose of the development permit for the carrying out of building work and the development approval required by IPA.

1. The lawful use and occupation of a building depends on the issue of a valid certificate of classification: s 95 SBR ("prohibition") and s 1.3.4 IPA ("lawful use").

1. The applicant submitted that "the lawfulness of a land use" depended on the validity of a certificate of classification and was conceptually a part of IPA, because the SBR operated as a code under IPA and the issue of a valid certificate of classification was a matter which "should have been done for IPA" in the context of s 4.1.21(1)(a) IPA.  In so far as the jurisdiction limitations referred to by his Honour Judge Rackemann in Cornerstone are concerned, when the "lawfulness of the use" is read down and applied as discussed by his Honour - the SBR could be seen to be a part of the IDAS process. 

1. Finally, the applicant submitted that the proper approach to the preliminary issue was for the Court to look at the words that gave jurisdiction to the Court, then to consider what the declaration was about and finally, to read or read down the paragraphs in issue in the statement of claim.

Respondents Submissions

1. The respondents submitted that the issue of a certificate of classification under SBR is not "a matter done for" IPA.

1. Part 9 SBR relevantly deals with certificates of classification; the "classification" being described in the Building Code of Australia. It is separate from those provisions (parts 2 and 8) relating to the assessment of development applications for carrying out building work and inspecting assessable building works in the stages leading to their completion.

1. It was submitted that the decision to issue a certificate of classification was a matter done for the SBR and not IPA:

1.        The need to obtain a certificate of classification arises under SBR and not   IPA.  It is not a matter resolved by reference to IPA.  By contrast, the need   to obtain a development permit to carry out building work requires a   reading of the SBR with IPA;

2.        The process for obtaining a certificate of classification sits outside the   IDAS process;

3.        The certificate of classification is a "document" for purpose of SBR  (s 103(1)) but enjoys no status under IPA:  that is, it does not become a   "development approval";

4.        IPA is irrelevant when determining the consequences of "a failure to   obtain" a certificate of classification:  one looks to SBR only in s 95(1); and

5.        SBR is irrelevant when determining the consequences of failing to do a   matter for IPA:  for example, a non-compliance with the IDAS process.

1. It was submitted that neither s 4.1.21(a) nor s 4.1.21(d) assists the applicant. Section 4.1.21(d) relates to lawfulness in the context of IPA rather than in respect of some other Act:  Cornerstone at para [48].

1. In IPA offences with respect to development and offences with respect to use of premises ("development offences") are dealt with in Ch 4 Pt 3 Div 1 IPA:  "development" is defined to include the carrying out of building work, but development offences do not include matters relating to a certificate of classification.  Hence the respondents submitted that the absence of a valid certificate of classification cannot go to the lawfulness of development at IPA; the definition of "lawful use" in s 1.3.4 IPA relates to whether the use is the consequence of making a material change of use (s 1.3.5 IPA) and whether the material change of use occurred in accordance with IPA; and the issue or otherwise of a certificate of classification is irrelevant to that definition.

1. The respondent submitted that in the absence of a connection between Pt 9 SPR and the IPA, the preferred construction is that a decision to grant a certificate of classification is not a matter done for IPA.  Rather it is a matter done for the SBR; and that the preliminary issue should be determined in favour of the respondents.

1. Further, it was submitted that appeals from the grant or refusal of a certificate of classification go to a tribunal created by IPA; s 5.3.9 IPA provides a process for a private certifier to be used for both assessing building work and issuing a certificate of classification; and s 3.1.4 speaks of lawfulness of use of land which is broader in scope than the lawfulness of a use of a building or premises.

1. In Cornerstone, his Honour Judge Rackemann suggested that there was an implied restriction in respect of the words in paras 4.1.21(1)(d) of the IPA, namely "the lawfulness of land use for development". There was no such implied restriction in respect of the matters specified in s 4.1.21(1)(a).

1. His Honour wrote the following in respect to the implied restriction:

"[44]   The declaration sought in para 1 of the originating application   raises a different consideration.  What is sought is a declaration that the   proposed works, including the clearing of vegetation, is 'lawful' and, in   particular, 'do not constitute the destruction of vegetation or excavation, in   a 'watercourse' requiring a permit under s 266 of the Water Act 2000'. Whilst sought to be brought pursuant to s 4.1.21(1)(c) of the IPA, the   declaration focuses upon the lawfulness of the works and terms of the WA                rather than the IPA.

[45]     The destruction of vegetation without a required permit constitutes   an offence under s 814 of the [Water Act].  The applicant was served with a   compliance notice dated 14 April 2004 under s 780 of the [Water Act], to cease destroying vegetation in Obi Obi Creek. An appeal has been instituted to the Magistrates Court against an internal review decision made on 18 June 2004 confirming the issue of the compliance notice but amending its contents. This calls into question whether the expression 'lawfulness of land use or development' in s 4.1.21(1)(c) ought to be construed as referring to lawfulness for the purposes of IPA or whether it   can extend to questions of lawfulness for the purposes of another Act.

[46] Given the amendment which was permitted with respect to the form that the declaration sought, it is also necessary to consider whether the declaration might fall under s 4.1.21(1)(a) as a matter done, or to be done or that should have been done 'for this Act'. In that respect, the Court's attention was drawn to an amendment which inserted the word 'for' instead of 'under'. The purpose of that amendment, as stated in the explanatory memorandum, was to clarify that matters done under another Act 'for the purposes of IPA' may be the subject of a declaration. 

[47]     Counsel for the first respondent reminded me of this Court's   decision in Dixon v Ipswich City Council (1993) QPLR 276 where, in the context of the now repealed Local Government (Planning and   Environment) Act 1990 (P & E Act), an applicant sought declarations that              it was lawful to build a dwelling house on land in accordance with a   certain building approval subject to conditions noted on the approved   plans, but without reference to further conditions purportedly imposed by                   way of subsequent letter from the Council.  It was submitted on behalf of   the applicant in that case that, at the least, the construction of a dwelling   was, if not a use of land, then 'an act, matter or thing to be undertaken in   respect of the use of land' so as to bring the declaration within the   jurisdiction of the Court as provided for in the legislation of the day.  In   rejecting that submission, the Court, having observed the potential width of               the words in the section, concluded that the concept of the 'use of land'   should be construed within the context of the P & E Act and not extended   to matters of relevance to the Building Act.

[48] The reference to the 'lawfulness of land use or development' when used in s 4.1.21 should, in my view, be construed as referring to lawfulness in the context of the IPA rather than in respect of some other Act, such as   the [Water Act].  Accordingly, I do not consider that the declaration sought falls within the Court's jurisdiction pursuant to subparagraph (c) of s 4.1.21(1).

[49]     I also do not consider that the declaration falls within   subparagraph (a).  While the declaration may relate to a further approval   which might be required for the development to proceed, that falls short of                establishing that it is a matter 'for' the IPA. 

[50]     While, as senior counsel for the applicant pointed out, there are   links between the IPA and the [Water Act], there does not appear to be a relevant link in this regard. As the second respondent's further submissions of 27 August state, 'as Ch 2, Pt 8 of the WA has not been rolled into the   IPA, its requirements to meet Ch 2, Pt 8 of the [Water Act] stands   separately to IPA'.

[51]     Accordingly, I consider that the Court has jurisdiction with respect   to the declarations sought in paragraph 6 and 7 of the originating   application but not in respect of the declaration sought in paragraph 1."

1. The applicant submitted that the legislation being considered in Dixon v Ipswich City Council (supra) contained more restrictive provisions than under the IPA; that there was no relationship between the planning provisions of the relevant planning legislation then and the Building Act 1975, with the effect that the "roll-in" provisions of the IPA to which his Honour had referred had not been enacted; and that for that reason it is said the case is of very little assistance on the preliminary issue. Nevertheless, I am of the view (see infra in [42]) that the term ‘use’ in IPA is to be construed in the context of that Act and not any other Act.

1. In Elkins v Comino & Rockhampton City Council [2004] QPELR 485, His Honour Judge Britton declined to exercise his discretion to make a declaration that a certificate of classification was void. The reasons for doing so are not relevant. The relevance is in the fact that his Honour, albeit not being asked to consider any issue of jurisdiction, nevertheless heard and determined an application for a declaration that a certificate of classification was void. It seems to me that this case is of little assistance because the jurisdiction issue was not raised or considered.

1. The respondents referred to Decca Pty Ltd  v City of Adelaide (1982) 52 LGRA 85 where in the context of the South Australian legislation it was said that classification of buildings has nothing to do with planning at all but had more to do with mechanical, engineering and safety aspects of the building industry. However, the applicant sought to distinguish that case on the basis that the decision pre-dated the whole concept of integrated planning pursuant to IPA. And that it was not a case about the jurisdiction of the Court but concerned the relationship of a planning approval and a certificate of classification in the context of the construction of a planning approval. Hence it was focused on a more narrow issue than the broader concept of integrated planning that IPA introduced in Queensland. That may be so, but it nevertheless deals with the purpose of a certificate of classification and that is a relevant consideration here.

1. Whilst it is true that the court in Devine the view was expressed that the decision in Cornerstone was too narrow, that case dealt with legislation that clearly was connected to IPA and the IDAS process because it specifically had to be taken into consideration in the context of its applicability or otherwise.

Lawfulness of Use

1. The applicant referred to the management of the use of the premises (s1.2.1 c) IPA) as a matter connecting the SBA process to the IDAS process in IPA. However, in my view there is a contextual distinction between the two. The ‘lawfulness of use’ in the IPA context has to do with strictly planning matters. The use of premises in the SBA context has to do with occupation of premises, in the sense described in Decca (supra).

Jurisdiction

1. The issue of jurisdiction of this Court has been considered on appeal in Netstar Pty Ltd v Caloundra City Council [2004] QCA 296; 134 LGERA 307 at 314 (McMurdo P, with whom Williams JA and Atkinson J agreed). The issue was whether this Court or the Supreme Court of Queensland had jurisdiction. The Court of Appeal held that the issue was properly one to be dealt with by this Court:

"[16]   Once a person brings an application under s 4.1.21(1), the Planning & Environment Court has exclusive jurisdiction because of s 4.1.21(5) and s 4.1.2(2).  Nothing in IPA excludes a person from bringing an application in the Supreme Court which could have been made under  s 4.1.21(1), if no like application has been brought in the Planning & Environment Court.  This means that where all parties consider a declaration which could also be brought in the Planning & Environment Court is most conveniently and sensibly determined in the Supreme Court, then the Supreme Court would have jurisdiction.  The jurisdiction conferred by s 4.1.21 IPA is specific and limited and will be strictly construed so as to minimise its impingement on the wide jurisdiction of the Supreme Court of Queensland:  Bathurst City Council v Saban.  The clear combined effect of the wording of        s 4.1.2(2) and s 4.1.21(1) and (5) is that, because the Council has brought an application for a declaration about the lawfulness of land use or development, the Planning & Environment Court has exclusive jurisdiction to hear that application."

Discussion

1. Whilst the retention of live issues in litigation in the one court is superficially attractive from a logistical, case management and costs perspective, nevertheless the issue of jurisdiction is a critical matter that falls to be determined strictly rather than broadly. I regard the comments of de Jersey CJ in Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, Planning and Women [2006] QPLER 714 at [22] as apposite in this case, in the sense that if the legislature had intended that issues concerning a certificate of classification be determined in the context of the IPA, one would have expected that to be clearly proscribed in IPA. It is not so proscribed.

1. With respect to the submissions of the applicant, the connection sought to be made between the SBA and IPA is somewhat forced and requires for its success a series of divers inferences to be drawn. I do not consider that to be a proper basis for the requirement of strict construction of the jurisdiction conferred in s4.1.21 IPA as recognised in Netstar (supra).

1. I do not consider that s4.1.21 (a) applies to the certificate of classification allegation. The connection sought to be made with the SBA is not sufficient.. It does not concern matters done, to be done or that should be done for IPA.

1. Further, I do not consider that the issues in respect of the certificate of classification allegation concern the lawfulness of land use or development in s4.1.21 (1) (d) of IPA. I agree with the view expressed by his Honour Judge Rackemann in Cornerstone and lawfulness being construed in the context of IPA and not other Acts.

1. It follows that the jurisdiction of the Court does not extend to the declarations 2 and 3 in the statement of claim. It follows that those declarations and paragraphs 66 through 84 of the statement of claim cannot stand and should be struck out.

The Costs Issue

1. The respondents (referred to collectively but excluding the fourth respondent) have applied for orders that the applicant pay their costs of and incidental to:

(a)         the hearing on 31 July 2009;

(b)         the hearing on 11 September 2009;

(c)         the hearing on 15 October 2009;

(d)        the Originating Application (in its first, amended, and first amended forms); and

(e)         the Application in pending proceedings;

to be assessed on the standard basis.

1. For the purpose of this issue I will continue to refer to the parties as applicant and respondents as in the preliminary issue, although their roles are reversed in this issue.

1. This application is able to proceed pursuant to the transitional provisions in s 818 of the SPA. The application reflects the applicant's case having started pursuant to s 4.1.21 of IPA.

1. In summary, the applicant initially proceeded by way of Originating Application.  A number of reviews were conducted in the court directed to identifying and describing deficiencies in that proceeding and providing an opportunity for the applicant to make consequential amendments.  The applicant subsequently produced a statement of claim and the orders of his Honour Judge Robin QC on 11 September 2009 effectively substituted the statement of claim for the Originating Application as the proceeding upon which the application was to thereafter proceed. The respondents submitted that the applicant failed to file and serve its statement of claim in accordance with the orders made by the court. It is asserted that the statement of claim provides different grounds and seeks different relief to that stated in the Originating Application in a number of respects.  Hence, the respondents submit that they have incurred costs because of the default of the applicant in the court's procedural requirements.

1. In the course of the progress of the proceedings instituted by the Originating Application, the court identified deficiencies on at least three occasions and they were itemised for the benefit of the applicant.  The deficiencies in the Originating Application were patently unable to be remedied by that form of proceeding and it seems to me clear that a fresh start was made by substituting proceedings by way of statement of claim.  I have no doubt that the complexity of the case was such that it was impractical to have the matter determined upon proceedings commenced by Originating Application.

1. Nevertheless, the applicant plainly did not meet the temporal or substantive requirements imposed by orders or directions of the court. Hence the issue is whether the respondents have expended costs that they may not have incurred but for the proceedings having been commenced as they were and the alleged delays by the applicant in the interlocutory process.

1. The courts’ review process is used to exercise some management of matters in this jurisdiction and to enable parties to steer their way through the court and case preparation and refinement process with the assistance of the court. It is not unusual for extensions of time to be granted or discretion to be exercised where reasonable circumstances result in minor non-compliance with directions and orders. That is not to say that in a specific case an order of costs against a defaulting, delaying or derelict party will not be made.

1. Section 4.1.23(2)(e) of IPA (and incidentally s 457(2)(f) of SPA) provide that the court may order costs for the proceeding as it considers appropriate where a party has incurred costs because another party has defaulted in the court's procedural requirements. Procedural requirements are both orders and directions of the court and matters referred to in the P&E Court Rules.

1. Section 4.1.23 of IPA applies to interlocutory aspects of a proceeding, which is the case here: Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council [2009] QPE LR 66, [7] per Wilson SC DCJ.

1. The respondents submitted that they incurred costs because of the applicant's defaults in the court's procedural requirements, in the following respects (in summary): 

(a)         The applicant's Originating Application throughout failed to comply with Rule 8 of the P&E Court Rules. 

(b)         The applicant's first Originating Application failed to comply with Rule 7 of the P&E Court Rules.

(c)         The applicant failed to comply with the court's orders dated 31 July 2009 by failing to file and serve its first amended Originating Application by the date required and amending its Originating Application in the context of repleading the relief sought and the grounds upon which orders and relief were sought.

(d)        The applicant failed to comply with the court's orders dated 11 September 2009 by failing to file and serve its statement of claim by the date required.  That date was one which the applicant had consented to being part of the order.

1. The applicant submitted that the respondent's' application was premature because neither the preliminary issue nor the substantive issues had been determined.  It was submitted in response to the allegations of failure to comply with the P&E Court Rules or orders of the court:

(a)       That there was no significant factual dispute with the basis upon which the application for costs was predicated;

(b)       That there had been a change of solicitors acting for the applicant respondent and a proposed amendment to the timetable in respect of the statement of claim was the subject of a consent order;

(c)       That the costs of some of the proceedings did not arise from default on the part of the applicant and as a consequence of the customary processes of review by the court;

(d)      That the respondents had not been required to plead to the allegations in the Originating Application;

(e)       That it is difficult to distinguish between costs which might have been incurred in any event in the proceedings now on foot as distinct from those which may not have been incurred as a consequence of the initial proceeding by way of Originating Application; 

(f)       That if there was default on the part of the applicant respondent that that or those are not such as ought to be required to be the subject of a costs order.

1. In Gauci (supra) the Council had failed to comply with a directions order requiring it to provide particulars.  Despite the fact that the order was not complied with because of administrative problems associated with amalgamation of local authorities, the court nevertheless made an order for costs on the standard basis.

1. Similarly in Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council & Ors [2009] QPELR 70, there was non-compliance with directions and orders which was visited with a costs order. However, the party against whom the order was made in that case had indicated in court an ability and an intention to comply with the time limits the Court imposed and had not done so.

1. In CQ Innovations Pty Ltd v Cairns City Council & Ors [2009] QPELR 71 the Council defaulted in a direction in respect to a part of a directions order for much the same reason, it seems, as the default in Regional Land Development Corporation (supra).  However, the Court nevertheless ordered costs against the Council.

1. An order for costs pursuant to s 4.1.23(2)(e) is a matter attracting the discretion of the court.  Whilst his Honour Judge Robin QC had on a previous occasion in the course of dealing with the Originating Application described the proceeding as "extraordinary", I do not necessarily apply that description to the manner in which the proceedings had been commenced (that is by Originating Application) but rather to the substance of the litigation in the holistic context. 

1. I do not doubt that an order for costs may be made in respect of interlocutory proceedings.  However, I agree with the applicant that it is premature to consider a costs application when the complexity of the substantive allegations has not yet been determined.  The character of some of the alleged defaults is different from others - particularly where the failure to file and serve the statement of claim, for example, appears to have been ameliorated by there being a consent order for that act to be done on a fresh date, the latter date having been complied with. There was a change of solicitors in the course of the proceedings and that no doubt contributed to the way in which the matter is now pleaded. The complexity of the litigation seems to me to have overwhelmed the efficacy and practicality of proceeding by way of the Originating Application.

1. Whilst it may be open to characterise some part of the conduct of the applicant as dilatory and deserving of a costs order being made against it, it is equally open to characterise it in the way that I have. The exercise of discretion in such matters as this is not to be done in an arbitrary way or so as to punish one or another party.

1. In the circumstances I am not persuaded that the costs order sought by the respondents is appropriate at this stage of the proceedings.  In my view a just, proper and fully informed outcome can be achieved by revisiting this cost issue on the final determination of the matters.

1. Consequently, the application by the respondents on the costs issue is refused.

1. I will hear the parties as to costs in respect to both applications.

Orders:

On the preliminary Issue:

1. Application refused;

2. The court does not have jurisdiction with respect to the declarations 2 and 3 of the applicant’s statement of claim;

3. The declarations 2 and 3 and paragraphs 66 through 84 in the applicant’s statement of claim are struck out;

B. On the costs issue:

4. Application refused;

C. Costs of these applications.

5.  I will hear the parties as to costs in respect of both applications..