Whitsunday Regional Council v McCracken
[2010] QPEC 104
•7 October 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Whitsunday Regional Council v McCracken & Ors [2010] QPEC 104 |
PARTIES: | WHITSUNDAY REGIONAL COUNCIL (applicant) v MICHELLE ANN McCRACKEN (first respondent) and CHIEF EXECUTIVE UNDER THE COASTAL PROTECTION AND MANAGEMENT ACT 1995 (second respondent) |
FILE NO/S: | 2386/2007 |
DIVISION: | Planning and Environment |
PROCEEDING: | Costs application |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 7 October 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 April 2010, 26 May – 28 May 2010 |
JUDGE: | Judge Rackemann |
ORDER: | That the application for costs and declarations is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – Application for declarations and costs – variation of enforcement orders – whether court ought make declarations as to non-compliance with previous orders – whether council may now seek costs of an earlier application otherwise disposed of – whether respondent frivolous or vexatious in opposing council’s application or in pursuing its own application – whether discretion ought be exercised Integrated Planning Act (1997) Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271 |
COUNSEL: | Mr Hinson SC for the applicant Mr Skoien for the first respondent |
SOLICITORS: | Norton Rose for the applicant Emanate Legal for the first respondent |
INTRODUCTION
The council seeks certain declarations and certain costs.
The council instituted the primary proceeding on 23 August 2007, seeking enforcement orders in relation to some unlawful earthworks and clearing on a large site. Enforcement orders were made on 27 June 2008. Those orders required remediation / restoration works, including engineering and revegetation works, to be carried out within specified times. In particular, the first respondent (McCracken) was ordered (amongst other things):
(a) in paragraph 7.1(1) to complete engineering works in Area 1 within 15 months i.e. by 27 September 2009;
(b) in paragraph 7.1(2) to provide a certification of stability that the completed earthworks have a minimum factor of safety of 1.3 against deep seated failure on completion of the works;
(c) in paragraph 10.1(1) to revegetate all cleared areas of Area 6 except a 2000m2 area by 30 November 2008; and
(d) in paragraph 12.1(1) to revegetate all cleared areas of Area 7 except a 3000m2 area by 30 November 2008.
The orders were not complied with by the required dates or by 23 October 2009, when the council filed an application which sought to vary the earlier order by requiring:
(a) compliance with paragraph 7.1(2) by 30 November 2009;
(b) compliance with paragraphs 10.1(1) and 12.1(1) by 31 December 2009; and
(c) the provision of bonds to secure performance of the works.
On 30 October 2009 the court, with the consent of the parties:
(a) changed the date in paragraph 7.1(2) to 31 December 2009;
(b) changed the dates in paragraphs 10.1(1) and 12.1(1) to 30 April 2010; and
(c) adjourned the application for bonds for further review.
Mrs McCracken was represented by her husband when the council’s application for bonds was considered. On 4 December 2009 Judge Robin QC ordered that if there was not timely compliance with the requirement to provide a certificate of stability by 31 December 2009, the first respondent would be required to provide a bond of in the amount of $84,600.00. The application for a revegetation bond was adjourned to 18 January 2010.
A certificate, dated 24 December 2009, was provided to the council in purported compliance with the order of 30 October 2009, but the council successfully contended that it was deficient.
On 18 January 2010 Judge Searles:
(a) found that the certificate did not comply with the requirements of paragraph 7.1(2) of the order;
(b) ordered that the bond ordered by Judge Robin QC be provided within 10 business days; and
(c) ordered that a bond for $108,790.00 be provided within 10 business days to secure the performance of the revegetation works.
On 5 February 2010 the first respondent, who had then re-engaged her lawyers, applied for orders to extend the time for provision of the bonds, pending a determination of the application, and for final orders deleting the requirements for the bonds, or varying their amounts and the time and circumstances of provision.
In support of her application, McCracken asserted that a great deal of the engineering and revegetation works had been completed at considerable expense, that she was working to complete the works and that she was not in a financial position to provide the bonds.
McCracken’s application was set down for hearing commencing 12 April 2010. The hearing was adjourned on the first day, when it became evident that there was disagreement among the experts, which would more appropriately be further explored by the experts themselves.
Subsequently, further joint reports were received, in which agreement was reached among the experts. That formed the basis for an order, made with the consent of the parties on 28 May 2010, pursuant to which (amongst other things):
(a) revegetation works and earthworks, are to be done in accordance with the most recent joint reports of the experts;
(b) mechanisms have been established to check compliance; and
(c) bonds are to be provided in the event of non-compliance.
It is evident that the primary proceeding was brought because of McCracken’s unlawful conduct and that the application by the council on 23 October 2009 and by McCracken on 5 February 2010, in respect of which the council now seeks its costs, were brought in the context of McCracken’s previous failure, in a timely way, to have done all that she was required to do. It might be thought that the council ought be entitled to its costs on that basis alone. However, this court’s jurisdiction to make a costs order only arises in certain circumstances, as set out in the legislation. Further, the relevant applications were for variations of orders, rather than to punish for past non-compliance.
The council’s costs application relies upon the court’s discretion being enlivened under section 4.1.23(2)(b) of the Integrated Planning Act (1997), which applies where the court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious. That provision extends to a respondent who conducts proceedings in a way that is frivolous or vexatious.[1]
[1]Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271 at 282-283, 292.
ORDERS SOUGHT
The council seeks an order for its costs of and incidental to its application from 4 December 2009 on the basis that the first respondent’s opposition to the orders as to bonds, sought and made on that day and in the hearing before Judge Searles on 18 January 2010, was frivolous or vexatious.
The council also seeks an order for its costs of and incidental to McCracken’s application from 5 February 2010, on the basis that the application was frivolous or vexatious.
In addition to orders for costs, the council also contends that the court should now make declarations that McCracken has not complied with parts of the earlier orders.
McCracken opposes the orders now sought.
DECLARATIONS
The application, which came before me for hearing, was McCracken’s application for deletion or variation of the requirement as to bonds, together with “such further or other orders as the court deems fit.” The application did not seek declarations, nor did the council make a formal cross application for the orders now sought, prior to handing up its proposed draft order.
It is difficult to see what purpose would be served by making the declarations. McCracken is concerned about the council’s motives in now seeking them. Senior counsel for the council submitted that it is “appropriate” that “the order state the basis upon which the new orders are being made in substitution for the old.” However, having already made the substantive orders otherwise it is unnecessary for the court to now give declaratory relief. I decline to do so, as a matter of discretion.
COSTS OF MCCRACKEN’S APPLICATION
The McCracken application sought:
(a) an interlocutory order extending the time for the provision of bonds, so that her application could first be heard and determined;
(b) orders, in the alternative, as follows:
i. the deletion of the requirements for provision of bonds imposed by the orders of 4 December 2009 and 18 January 2010; or
ii. variation of the requirements for provision of bonds imposed by the orders of 4 December 2009 and 18 January 2010, in relation to the amount of the bonds, the time for provision of the bonds and the circumstances in which the bonds must be provided; and
(c) such further or other orders as the court deems fit.
As counsel for McCracken pointed out, that application ultimately achieved a measure of success, at least with respect to the alternative prayer for relief. The interlocutory order sought was made on 5 February 2010. As to the substantive relief, the final orders, made with the consent of the parties on 28 May 2010, include provision for bonds, but varies the requirements, as imposed by the earlier orders.
By the order of 18 January 2010, McCracken was obliged to provide a bond or bonds:
(a) in the specific sums of $84,600 and $108,790;
(b) within 10 business days, which was prior to the extended time for completing the revegetation works.
By the order made on 29 May 2010 however, McCracken’s obligation to provide bonds:
(a) is postponed to 30 June 2010, 31 August 2010 and 1 November 2010;[2]
(b) is conditioned on future findings of non-compliance;
(c) is to be quantified in the way provided for in the latest order.
[2] See paras 5, 13 and 18 of the order.
The order of 29 May also makes changes with respect to the time within which work is to be done. For example, a new certificate of stability in respect of the earthwork is not now required until 16 August 2010[3] and the revegetation does not have to be complete until:[4]
(a) on or before 30 May 2010, in the case of all revegetation except the 400 plants in the stormwater detention basin shown on Plan 2 of the joint report; and
(b) on or before 30 September 2010 in the case of the 400 plants in the stormwater detention basis shown on Plan 2 of the joint report.
[3] See para 11 of the order.
[4] See para 1 of the order.
Further, the order of 29 May also makes changes in respect of the descriptions of what is to be done.[5]
[5] Part of the reason for the council’s rejection of the certificate of stability obtained by McCracken in December 2009 (and its contention that no certificate could be obtained), was that the works, the stability of which was being certified, did not, the council contended, correspond with those which had been required to be done (or were not done in the way required) by the previous order. The new order gives McCracken an opportunity to obtain a certificate of stability, by 16 August, subject to doing the things specified in paragraph 10 of the latest joint report of the engineers. There has also been a change to the description of the revegetation works. The new order identifies those works by reference to the latest joint expert reports. Those reports evidence agreement on the total number of native woody plants which still have to be planted, but also that the required average density across areas 6 and 7 could acceptably be achieved by infill planting within existing planted areas and in areas either side of the proposed access tracks, to reduce their width.
Given the extent to which McCracken’s application has successfully led, by agreement, to those changes it is difficult to conclude that the proceedings were frivolous or vexatious.
Senior counsel for the council emphasised that, in his submission, there was never a basis to contend, as McCracken did, that the revegetation work had been done, or that a certificate of stability, based upon works carried out other than as required by the earlier orders, could be satisfactory. He invited the court to view the McCracken application in the light of earlier non-compliance and a failure to have sought any variations prior to the council’s application of 23 October 2009. It was contended, in effect, that McCracken had shown scant regard for the orders of the court.
It should be borne in mind, however, that:
(a) The claim that appropriate revegetation had been done was initially supported by an experienced expert, Dr Olsen.[6] That was primarily because he had wrongly apprehended that there had been agreement to a particular revegetation plan.[7] There is no basis to conclude that Dr Olsen was intentionally misled by McCracken or her legal team or that they were conscious of the error at the time.
[6] See exhibit 3.
[7] See exhibit 15.
(b) The most recent order, made with the consent of the council, gives McCracken an opportunity to obtain a certificate of safety for the works, subject to doing the things specified in paragraph 10 of the joint report.
(c) The extent to which works had been undertaken was only one aspect of the case for McCracken. Her financial ability to provide the bonds, as ordered, was also in issue. In that regard, McCracken’s solicitors obtained an affidavit from a chartered accountant, Mr Crofts, who deposed, amongst other things, that:
“The first respondent is not financially capable of meeting the requirements for the payment of bonds under the orders, namely eighty four thousand six hundred dollars ($84,600.00) and one hundred and eight thousand dollars ($108,790.00).
…
In my view, given the financial position of the first respondent, and given the lending environment that currently exists, no lending institution would make available to the first respondent any form of bond, such as a bank guarantee, in the sum of approximately $193,000.00 or any sum at all.”
Mr Croft was not cross-examined. While the orders, ultimately agreed to, contemplate that bonds may be required, that requirement is deferred in time, is contingent and is in amounts yet to be quantified. I am not prepared to find that this ground of McCracken’s application was disingenuous or indicative of a frivolous or vexatious approach.
Moreover, given the measure of success which McCracken has enjoyed and the circumstances otherwise, I am not persuaded that the court’s jurisdiction to entertain an order for costs in relation to her application, on that frivolous or vexatious ground, is enlivened or that it should be exercised, as a matter of discretion, in any event.
COSTS OF THE COUNCIL’S APPLICATION FROM 4 DECEMEBER 2009
The council seeks the costs of part of its application, filed on 23 October 2009 (ie. the costs from 4 December 2009), on the basis that McCracken’s opposition to the orders sought by the council for provision of bonds was frivolous or vexatious.
McCracken’s takes objection to those costs now being sought by, in effect, an instanter application in the context of its own application. It points out that the council’s application of 23 October 2009 did not seek costs and that no orders for costs were sought or ordered when the application was heard and determined. It was submitted that the application has now been spent and that the courts is functus officio, in respect to that application.
The question of costs was earlier raised in correspondence from the council, which was in terms which senior counsel for the council readily and properly conceded was inappropriate. He submitted that the council could now seek its costs of the earlier application. He submitted that the application was not spent, because it had sought, “such further orders that the court considers appropriate,” and the orders granting the principal relief had not gone on the otherwise dismiss the council’s application.
It seems to me that there is force in the submissions made by counsel for McCracken on this point. It is however, unnecessary for me to express a concluded view because, for the reasons which follow, I would not be minded to make a costs order in any event.
The submissions on behalf of the council focused on compliance issues and whether McCracken has a basis to contend that there would be compliance. It should be borne in mind, however, that the council had no entitlement to have the orders varied, so as to include provisions for bonds. Whether the court would be persuaded to provide for bonds and, if so, on what terms, was a matter for the court’s discretion, rather than a matter of entitlement.
Even if it had been the case that McCracken had no legitimate expectation of being able to meet her obligations in a timely way, it does not follow that she was duty bound to consent to orders for the bonds sought by the council or that her failure to so consent meant that her response to that part of the council’s application was frivolous or vexatious.
There is a context to the circumstances in which the council pursued the bonds on 4 December and 18 January. At the request of McCracken, a mediation in relation to the council’s application of 23 October was conducted. It was conducted by the court’s ADR registrar on the subject land on 3 September 2009. The mediation resulted in an agreement subject to the council’s satisfaction, in respect of timing for further works and for consideration of the provision of rolling bonds in the event of non-compliance. Ultimately no agreement concerning the provision of bonds was reached (for which the council blames McCracken) and the council proceeded with its application which, on its face, sought “up-front” bonds, in quantified amount, to be provided within five business days. The payment of up-front bonds has been a recurring concern for McCracken.
The application, in so far as it related to a bond to secure compliance with the requirement to provide a certificate of stability, was heard on 4 December 2009. At that time, McCracken’s solicitors withdrew, and she was represented by her husband, as her agent. The matter was stood down, to allow other matters to be interposed. When the hearing resumed, senior counsel for the council informed the court that, following discussions with Mr McCracken, the council would not pursue “up front” bonds payable within five days, but rather would be satisfied with an order that linked the provision of the bond to the extended date for performance the obligation, being 31 December 2009. In other words, the council did not pursue the orders sought in its application, but was content for different orders to be made, which better accommodated McCracken.
When called upon Mr McCracken only made brief submissions in response. He confirmed that he had no difficulty with obtaining a certificate by 31 December and that the engineers were in the field, for that purpose. Judge Robin QC responded that there should therefore be no difficulty with the arrangements about the bonds. Mr McCracken responded that he wanted to clarify some matters, and he was given that clarification. There was no further substantial argument and the orders were made, once Judge Robin QC satisfied himself of the jurisdiction to make them.
It is difficult to characterise McCracken’s response to the application as frivolous or vexatious. The council sought a discretionary remedy. When the matters came on, and as a result of discussions with McCracken, it altered its position, to seek orders which better accommodated McCracken. Mr McCracken, in response, indicated an ability to comply with the substantive obligation and did not otherwise engage in substantial argument to resist the orders ultimately made. McCracken’s conduct would appear to be not unreasonable, let alone frivolous or vexatious.
It was submitted, on behalf of the council, that McCracken did not, at that time, have any reasonable basis to think that compliance could be achieved in a timely way. It is evident that properly qualified and experienced engineers had been engaged by McCracken and were working. Indeed, a certificate was subsequently produced, in accordance with the time for performance. It is true that the certificate was later found, by Judge Searles, to be inadequate, but that does not mean that Mr McCraken was disingenuous in what he said to the court on 4 December 2009.
It was submitted that McCracken ought to have realised that the works undertaken could never have been certified, since, it was submitted, the obligation to obtain a certificate of stability must, by inference, be read as a requirement to obtain a certificate in respect of works carried out otherwise in compliance with the orders. It should be noted, however, that this proposition, although apparently of substance, was to be the subject of legal argument, had McCracken’s application not otherwise been resolved. Further, the orders now made give McCracken an opportunity to obtain a certificate of safety subject to achieving the things set out in the latest joint report of the engineers.
Given the way the matter was conducted, on both sides, I would not be prepared to exercise my discretion to orders costs, in relation to the hearing of 4 December 2009, even if that discretion could be said to have been enlivened.
At the hearing on 18 January 2010, the court considered the council’s application for an “up front” bond for revegetation works, in advance of the extended date for completion and also an application for prompt provision of the bond for the certification of works, given the failure by McCracken to provide an adequate certificate.
McCracken was again represented by her husband, whose submissions were, again, relatively brief. He was somewhat critical of the evidence of the council’s engineer as to the adequacy of the certificate which had been provided, but he did not have any affidavit from his own engineer to back up his criticisms. He referred to the considerable amount of money that had been spent in engaging a nationally recognised engineering firm in attempting to comply and relied upon their certificate. McCracken was not successful, but I am not satisfied that the conduct, in responding to this aspect of the council’s application, would warrant an exercise of the discretion to order costs, even if the jurisdiction could be said to be enlivened.
Mr McCracken’s submission, with respect to the provision of “up front” bonds for the revegetation works, the extended date for which had not yet arrived, was also relatively brief. In opposing the order he referred to what works had been done, his confidence that they would be completed in a timely way and the financial pressure which his wife would face in being asked to provide an “up front” bond, in addition to financing the works. He sought in the alternative, that the time for provision of the bond be after the extended deadline for the completion of the works.
He was not successful, but that does not mean that the response to this part of the council’s application was frivolous or vexatious. The points made were available and reasonable submissions were put before the court in its consideration of a discretionary remedy sought by the council.
Senior counsel submitted that the subsequent failure to perform in a timely way throws light upon McCracken’s approach to the orders for bonds, but if future events are to cast light on the matter then it might also be noted that the council has since agreed to a further extension of time with which to do the outstanding works and has also agreed to orders which postpone the provision of bonds.
Moreover, I am also unpersuaded that McCracken’s opposition to this aspect of the council’s application would warrant an adverse order for costs, even if the discretion could be said to have been enlivened.
The council’s applications are dismissed.
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