Vint v Carpentaria Shire Council

[2005] QPEC 18

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Vint v Carpentaria Shire Council & Anor [2005] QPEC 018

PARTIES:

LARRY VINT
Appellant/Respondent

v

CARPENTARIA SHIRE COUNCIL
Respondent/Second Applicant

and

CLONDARR PTY LTD ACN 010 809 908 as trustee for THE END OF THE ROAD UNIT TRUST
Co-respondent/First Applicant

FILE NO/S:

BD 3399 of 2004

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2005

JUDGE:

Skoien SJDC

ORDER:

Applications dismissed.

CATCHWORDS:

Application for costs; frivolous or vexatious; grounds arguable.

COUNSEL:

W. Cochrane for first Applicant; Solicitor P. Djohn for Second Applicant; B. Cronin for Respondent

SOLICITORS:

John Hawes & Associate for First Applicant         MacDonnells for Second Applicant  Phillips Fox for Respondent

1. These are applications by both Clondarr and the Council for their costs of the appeal. They rely on s.4.1.23 of the Integrated Planning Act 1997 which, after stating in subsection (1) the basic proposition that each party is to bear its own costs, provides in subsection (2) circumstances in which the Court has a discretion to order the payment of costs. The applicants rely on paragraph (b), arguing that this appeal was frivolous or vexatious.

1. The appeal was brought by Vint, an objecting submitter, on 21 September 2004 against the Council’s decision to approve Clondarr’s development application for a material change of use of land at Karumba, Queensland for a 22 unit motel, caretaker’s residence and sewerage treatment plant.  The grounds of appeal raised:-

(a)restriction of access to an adjoining parcel of land owned by Vint;

(b)intensity of development;

(c)noise;

(d)traffic; and

(e)odour from on-site sewerage treatment.

The appeal was set down to commence on 29 March but on 24 February Vint filed a Notice of Withdrawal of the appeal.

1. The site has frontages both to Palmer Street (to the east) and to the Esplanade (to the west).  The Esplanade runs beside the Gulf of Carpentaria.  The Vint land adjoins the site to the south and its only road access is (in theory) from the Esplanade.  However in practice that is not possible because the Esplanade has been eroded away by the Gulf waters.  I gather that, to gain access to the Vint land, the practice has developed of driving across part of the site.  There is apparently no present prospect of the Esplanade being re-built to give formal access to the Vint land, or of access to the Vint land being obtained from Palmer Street.  The Vint family has owned the Vint land for many years and use it occasionally for camping holidays.   On the evidence they intend to keep the land indefinitely for that recreational use.  There was nothing put before me to suggest that the Vint land cannot lawfully be used for recreational residential purposes or even for permanent residential use.

1. In Vint’s objecting submission, the first ground raised is headed “Access” and is:-

“Adequate access to the Vint land is not possible via the Esplanade, which has been substantially eroded over time.  It is apparent from the landscape drawing (4001:02) that the proposal, if constructed, will result in the landlocking of the Vint land.  This will result in an unacceptable sterilisation and devaluation of the Vint land.  It is incumbent upon Council to resolve this by requiring the applicant to grant an easement burdening its land and benefiting the Vint land, in order to provide lawful access to the Vint land.  This can be achieved by means of a reasonable and relevant condition of approval requiring the applicant to provide this easement at no cost to the Vint family.  The resolution of the access issue is however subject to satisfactory resolution to the other concerns articulated in this submission.

The appropriate location of such easement would appear to run from the entry point of the applicant’s land, across the car parking and bus parking bays to the boundary of the Vint land.

An alternative solution would involve the reclamation and retention of the Esplanade to guarantee safe and permanent vehicular access to the Vint land.”

The submission goes on to raise the other matters referred to in para [2] above.

1. Clondarr’s proposed development is restricted to the site and does not encroach on any adjoining public or private land.  Before me it was said by the Applicants, and not disputed on behalf of Vint, that on an appeal to this Court there would be no power for a condition to be imposed requiring Clondarr to create on the site an easement in favour of the Vint land.  It was said that such a result could be obtained only by application to the Supreme Court under the Property Law Act 1974, presumably s.180. However Mr Cronin, for Vint, submitted that it would be a proper matter for a responsible planning authority to impose a condition that a set-back of development be provided along the western boundary of the site to allow for the provision at some time of formal access to the Vint land.

1. The possibility of that condition being obtained on appeal was not argued in any detail but I would not dismiss it out of hand.  Councils impose on developers conditions of set-backs to provide for road construction or even requiring immediate dedication of land for that purpose.  Where a public road (the Esplanade) which gave access to the Vint land when it was acquired by the Vint family has become unusable a responsible council may well have to turn its mind to providing formal access and that could encompass the setting aside by set-back or requisition of other private land.  Something of that sort was actually done by this Court (Dodds DCJ) in Smith v Maroochydore Shire Council & Anor (2004) QPELR 358.

1. The filed material suggests that this question of access was Vint’s primary concern. There were, however, the other issues which I have set out in para [2]. As late as 15 February his solicitors wrote to Clondarr’s solicitors a ‘without prejudice’ letter hinting that the access issue had been abandoned, or was likely to be, but still suggesting bases for settlement of the visual amenity, noise and sewerage issues. On the material available to me Vint’s legal advisers had contacted, and presumably retained, a town planning consultant whom Mr Cronin named as Mr Grummet and an engineer named Mr Boyd.

1. The history of the litigation suggests that Vint and his legal advisers were not scrupulous about obeying the time limits laid down in Court directions, but not to the extent that arouses my suspicions about their bona fides.

1. The material filed on behalf of Vint swears that as the date for the appeal approached it was concluded that the prospects of negotiating a settlement were “fairly low”.  There had been no response at all to the letter of 15 February.  There was also concern about the cost of the appeal which involved such expensive things as air transport of counsel and solicitors from Brisbane to Cairns and Karumba.  There is no suggestion that the value of the Vint land is so high as to justify the expenditure of very large sums of money.  So on 24 February Vint filed a notice of discontinuance.

1. In order to categorise proceedings as frivolous or vexatious something considerably more than lack of success needs to be shown (see Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (1997) QPELR 84; Robina Land Corp Pty Ltd v Albert Shire Council & Anor (1995) QPLR 211). The proceedings must be manifestly groundless (see R D Williams Tractors Pty Ltd v State of Queensland (1998) QPELR 26). A party’s arguments will not be categorised as frivolous or vexatious so long as they were, at least, arguable, even if not overburdened with merit (see O’Connor v Herberton Shire Council (1998) QPELR 485. It is relevant to consider the question of good faith and whether the proceedings were intended merely to annoy or embarrass (see Australian Conservation Foundation, supra.

1. I fail to see how one could categorise as manifestly groundless an appeal which raises issues of visual amenity, noise and odour in relation to vacant beachfront land which can lawfully he used for residential purposes, arising out of the development next door of a 22-unit motel with associated car parks and on-site sewerage treatment.  Common sense suggests that such issues are at least arguable. I am not persuaded to categorise the appeal as manifestly groundless simply because, at the time the appeal was discontinued (over a month before the appeal was to start) it seems no reports had been obtained by Vint from experts dealing with the issues.  Nor is there any reason to question the bona fides of Vint or to suspect an intention merely to annoy or embarrass, in seeking to raise these matters.  Then, as I have said, there is the arguable issue of the provision of a set-back condition to permit a future easement application or road works.

1. The onus of proof that the appeal was manifestly groundless, or mala fides, rests with Clondarr and the Council.  Indeed, as these matters have not been litigated how can anyone say they are groundless?  In the absence of litigation and findings of fact, the groundless nature of the appeal would have to appear on the face of the Notice of Appeal (and any further particulars) itself.  See Goodson v Grierson (1908) 1 KB 761; Dey v Victorian Railways Commissioners (1948-9) 78 CLR 62 at 91, (per Dixon J). That is not the case here, where the Notice of Appeal raises such apparently relevant issues.

1. The proffered reasons for withdrawal of the appeal, that is, disproportionate expense and only debatable, or even slight, chances of success are not at all unusual reasons.  Nor do they add weight to an argument that the appeal is frivolous or vexatious.  See Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) QPELR 333 at 335. I dare say that over the years some cases which could well have succeeded have been withdrawn for those reasons as well as many a perfectly arguable one.

1. The applications are dismissed.