Wheeler v Townville City Council
[2009] QPEC 99
•20 October 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wheeler v Townville City Council [2009] QPEC 99
PARTIES:
MALCOLM EDWARD WHEELER
Appellant/Applicant
V
TOWNSVILLE CITY COUNCIL
Respondent
FILE NO/S:
Townsville D 182/2008
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
20 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Refuse the applications for costs brought by both parties
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – COSTS – COSTS IN THE PLANNING AND ENVIRONMENT COURT – where council refused a development application for a residential carport – where matter settled out of court before hearing date – where self-represented appellant sought costs – where appellant sought an order to obtain a written decision notice from Respondent Council – where Respondent Council sought costs in respect of hearing to obtain written decision notice – whether decision notice from the local government was unnecessary – whether there is a basis for an award of costs in favour of the appellant under s 4.1.23(2) of the Integrated Planning Act 1997
Integrated Planning Act 1997 s 4.1.23(1), s 4.1.23(2)(a), s 4.1.23(2)(b), s 4.1.23(2)(e)
Legal Profession Act 2007Collier & Collier v Brisbane City Council [2009] QPEC 040
Mudie v Gain River Pty Ltd [2003] 2 Qd R 271COUNSEL:
Appellant in person (by telephone)
John Haydon for the respondentSOLICITORS:
Appellant self-represented
Legal Services, Townsville City Council
This case concerns a carport at a dwelling at 10 Deschamp Street, Aitkenvale. Council refused Mr Wheeler permission to build this small, open freestanding structure towards the front of the dwelling near the street and he lodged his notice of appeal in this court at Townsville on 16 July 2008. Because Mr Wheeler, who is a retired solicitor, was known to the judges in Townsville the matter was ultimately listed for trial before another judge in July this year.
Shortly before the hearing the matter settled and under an order of 23 July 2009[1] Mr Wheeler’s Application for a Development Permit was approved, subject to some agreed conditions.
[1]Court Document No 30.
He also applied, however, for costs and it was ordered that his application be determined on the papers, with a timetable for the delivery and exchange of submissions.
Throughout the matter Mr Wheeler has produced a large number of voluminous documents. The court file is, for a case about a carport, enormous. He has persisted in sending documents to the court since the order of 23 July 2009. It is, with respect, sometimes difficult to work out just what purpose they serve or to what end they are directed. Doing the best I can it appears there was some problem for Mr Wheeler in obtaining building certification for the carport after the order of 23 July and he sought a Decision Notice from Council. When that was not forthcoming he filed a document in, I think, the form of a draft order seeking a Decision Notice, and his ‘…professional costs … as a solicitor of the Supreme Court of Queensland acting personally, as well as the out of pocket expenses of the appellant of this appeal, which out of pocket expenses as calculated by the appellant up to the date of this application will exceed $6,575’.
The matter came on before his Honour Judge Brabazon QC on 20 August 2009. He ordered that the appellant’s ‘application dated 19 August 2009’ should be listed for hearing before me as soon as possible, and reserved the costs of the proceedings on that day. The matter came back before me on 11 September 2009 when, as I understood Mr Wheeler, he signified that difficulties with the Development Permit had been resolved, but he still sought costs. To complicate matters, the Council also sought costs in respect of the hearing before Brabazon QC, DCJ on the basis that a Decision Notice from the local government itself was, after the order of the court, always unnecessary and superfluous.
I will address Mr Wheeler’s application for costs first. According to a document he filed on 14 August 2009[2] Mr Wheeler is claiming out of pocket expenses; ‘…full compensation by way of costs for all the expense and loss in kind I have been occasioned by (the Council’s) proved wrongful refusal of my Development Application’; and, ‘…compensation in respect of my professional time and expertise as a solicitor of the Supreme Court of Queensland”. He says that his out of pocket expenses of $7,426.64 up to 27 July 2009 “…constitute only part of the costs I claim”. He says he ‘…agrees and undertakes to accept any reasonable amount that the court may determine on the papers as a fixed sum for compensation to me by way of my costs of this appeal, provided that the fixed sum is not less than $35,000 (inclusive of my out of pocket expenses) by way of compensation for my professional time and expertise as a solicitor acting personally in this appeal for myself as appellant’.
[2]Court Document No 31.
Elsewhere the document alleges discrimination, victimization and corruption by the Council ‘against’ Mr Wheeler; loss of rent from the premises; deliberate or inexcusable delay on the part of the Council in the conduct of the appeal proceedings; that Council deliberately embarked upon a ‘… multiplicity of complex, onerous and expensive procedures’ which were ‘… frivolous and/or vexatious and served only to delay and obstruct’; and, repeated default in procedural requirements on Council’s part – requiring, for example, eight appearances before the court up to 23 July 2009.
It appears from paragraph 31 of the document that Mr Wheeler does not, however, currently practice as a solicitor. He says: ‘… although I am no longer in public practice and paying indemnity insurance as a solicitor I am entitled to the same or similar costs in this appeal as if I were because I am a solicitor acting personally for myself to which indemnity insurance would not extend anyway because indemnity insurance is for the protection of clients and not the solicitors acting for them, because, inter alia, I do not have to be in public practice with professional indemnity insurance to act for myself (that is, to act as a solicitor for myself, because I am a solicitor and cannot do otherwise); and because, by acting as appellant personally and without representation by a solicitor in public practice, as the solicitor’s client, I have saved (the Council) a like amount in costs (which I estimate in the order of $75,000); and, because I submit, because it is only fair that I should be compensated to some extent as successful appellant (say to 50 per cent) …’.
The documents on the court file do not indicate any special or excessive delay. After an appearance from Council the parties underwent the procedures set out in Rule 16 of this court’s former Rules[3] which were completed by early October 2008. Those Rules required that the parties seek a directions order from the court at an early time but that did not in fact occur until Council filed the appropriate application in January 2009. Thereafter it became clear that the judges in Townsville could not hear the matter and a directions order was ultimately made on 16 March. The parties then embarked upon the joint expert report process which apparently narrowed the disputed issues. The report was dated 13 May 2009. Thereafter, Council offered proposals to resolve the matter and when the matter came on for trial, consented to an order that the appeal be allowed and the carport development approved subject to conditions.
[3]Planning and Environment Court Rules 1999.
Costs in this court are governed by section 4.1.23 of the Integrated Planning Act 1997 which, in sub-section (1) provides that each party must bear its own costs. Sub-section (2) provides exceptions to that rule and as I understood Mr Wheeler’s submissions he relies upon three of its provisions: sub-section (2)(a), which attracts a discretion to award costs if the court considers the proceeding was instituted merely to delay or obstruct; sub-section (2)(b), which attracts the same discretion if the court considers the proceeding or part of it to have been frivolous or vexatious; and, sub-section (2)(e) which, again, allows the discretion to arise if there has been a breach of procedural requirements.
The first ground is only attracted, however, where an appeal is filed or instituted merely to delay or obstruct. It does not, on its face, extend to the conduct of respondents to appeals. Even if a contrary view is taken, I am not persuaded the respondent’s decision to refuse the original Development Permit or contest the appeal can be shown (by evidence) or, on examination, be seen by implication to have been conducted for or with that purpose.
The second ground ‘frivolous or vexatious’ would, here, only apply if it could be seen that resistance to the appeal was pointless or futile or moved by a desire to cause trouble or harassment.[4]
[4]Mudie v Gain River Pty Ltd [2003] 2 Qd R 271; Collier& Collier v Brisbane City Council [2009] QPEC 040.
Council’s original reasons for refusal are set out in its Decision Notice. They were, firstly, that the carport would be overly dominant of the existing streetscape and will impact on the continuity of that streetscape. Secondly, it was asserted that the carport would have an adverse effect on amenity. Thirdly, that because of its scale, bulk and location it would have an adverse impact on the appearance and character of the existing dwelling. Finally, it was said that having regard to the size of the lot and its dimensions the appellant had not provided sufficient justification for the proposed relaxation of the Planning Scheme Setback provisions.
Mr Wheeler’s subsequent Notice of Appeal raised a large number of issues including some which seem, with respect, irrelevant or at best barely relevant – e.g., he said that the carport would reduce costs and carbon emissions.
Subsequent lists of issues grew dramatically and by October 2008 included allegations, from Mr Wheeler, that Council may not have been lawfully empowered, or had the legal right to prohibit the carport under its Planning Scheme. It was not until the directions order was made (at Council’s behest) in mid-March 2009 that the disputed issues crystallised. The matter then appears to have become bogged down in disputes but the affidavit material, again, shows the Council was attempting to reduce complications and complexity introduced by the appellant and attempting to move towards resolution by engaging a town planner, arranging without prejudice meetings and attempting to organise a mediation. It also made a first, open offer on 22 June 2009. Nothing in the material suggests the respondent was acting, generally, other than as a reasonable responsible litigant and nothing suggests conduct which could fairly be described as frivolous or vexatious or, indeed, anything approaching conduct which could be characterised in that way.
By the time of the hearing in July the matter had been resolved subject to a dispute about one of the conditions and following representations by Mr Wheeler the Council deleted some of them. Again, nothing in these events can fairly be said to attract a characterization as frivolous, or vexatious.
Mr Wheeler also makes allegations, of course, of discrimination, victimization, corruption and “attrition”. It appears that he thinks these allegations can fairly be made because of Council’s overall conduct in respect of his Development Application and these proceedings. As the history of the matter shows, however, that conclusion is simply not open. There is, I am satisfied, no basis for an award of costs in Mr Wheeler’s favour under this provision.
Finally, the ‘procedural requirement’ ground (section 4.1.23(2)(e)) hinges upon Council’s failure to attend a meeting as ordered by the court on 16 March 2009. While Mr Wheeler’s written submissions address what subsequently occurred at great length it is plain that nothing was lost (in terms of advancing the matter towards determination, either by agreement or a hearing) as a consequence of the breach. Indeed, it appears that Council subsequently attempted to remedy the default, including offers to go to mediation but Mr Wheeler refused all these proposals and, indeed, said that to meet again would be to no avail. I am unable to see how any costs or outlays can be attributed to this event.
There may also be an added difficulty. It does not appear that Mr Wheeler is, currently, an Australian legal practitioner under the Legal Profession Act 2007. He says he does not have professional indemnity insurance (which is a requirement under that Act) or hold a current local practicing certificate. It is appropriate to observe that, even if Mr Wheeler is still properly in practice, this is simply not a case in which the circumstances warrant any departure from the usual rule applying in this jurisdiction, under section 4.1.23(1).
Mr Wheeler’s apparent separate claim for outlays is not known to IPA. It appears to be different from his claim for legal costs and may, in fact, be intended as a claim for damages against Council. If an action of that kind is available to him it would have to be the subject of separate proceedings, properly brought in the appropriate jurisdiction. I am not aware of any power in the Planning and Environment Court, granted under IPA, to award remedies of that kind.
Unfortunately, that is not the end of the matter. Some kind of application was brought by Mr Wheeler in August and is the subject of the order of Brabazon QC, DCJ of 20 August. As previously observed, doing the best I can, it appears to be an application for an order that Council must, within seven days, provide a Decision Notice stamped ‘Approved’. When the matter subsequently came before me Mr Wheeler did not press for this relief and, as I was informed by the barrister appearing for the Council (and I accept) it was superfluous and unnecessary. The final determination was an order of this court, not a decision of the Council on the Development Permit.
Council then seeks the costs of and incidental to that application. It sprang, it appears, from Mr Wheeler’s misapprehension about the provisions of IPA and a misunderstanding on his part, or that of his agents, about what was necessary to go ahead with the construction of the carport. While Mr Wheeler was acting under a misapprehension the consequences were, in the context of a refusal by Council for the building of a simple carport which necessitated an appeal on his part, minimal. Further, in that context, I am unpersuaded that costs ought to be awarded against him.
In the result both parties’ applications for costs will be dismissed.
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