Younie v Dender
[2014] QPEC 70
•5 December 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Younie & Anor v Dender & Ors [2014] QPEC 70
PARTIES:
SCOTT ANDREW YOUNIE and KAREN MICHELLE YOUNIE
(Applicants)and
ANTHONY JOSEPH DENDER and BARBARA MARY DENDER
(First Respondents)and
PEREGIAN PET RESORT PTY LTD ACN 137550531
(Second Respondent)and
SUNSHINE COAST REGIONAL COUNCIL
(Third Respondent)FILE NO/S:
174/13
DIVISION:
Planning & Environment Court
PROCEEDING:
Originating application
ORIGINATING COURT:
Planning & Environment Court, Maroochydore
DELIVERED ON:
5 December 2014
DELIVERED AT:
Maroochydore
HEARING DATE:
5 December 2014
JUDGE:
Robertson DCJ
ORDER:
1. The oral application made on behalf of the first and Second Respondents for an extension of time in relation to order 5 of the order made 15 October 2014 is refused.
2. The First Respondents and the Second Respondent jointly and severally pay the Applicants’ costs of and incidental to this proceeding on an indemnity basis (including the costs of two counsel).
3. The Applicants’ costs of and incidental to this proceeding include all costs relating to investigations and gathering evidence for the making of the declarations and orders and the bringing of this proceeding, including applications pursuant to the Right to Information Act 2009.
CATCHWORDS:
PLANNING AND ENVIRONMENT COURT – ORIGINATING APPLICATION – where Applicants as private citizens applied for declarations and enforcement orders alleging multiple breaches of a court approved material change of use permit granted on 14 January 2005 – where hearing proceeded on 13 October 2014 over three days – where at the conclusion of the hearing the First Respondents and Second Respondents represented by Anthony Joseph Dender agreed to negotiate with the other parties resulting in an order made on 15 October 2014 which was essentially in terms of the declarations and orders sought in the originating application filed on behalf of the Applicants – where First and Second Respondents have filed no material to indicate compliance with the 15 October 2014 order – where the only evidence of partial compliance comes from an affidavit filed by the Applicants’ solicitor – where the First and Second Respondents seek an extension of time for the operation of enforcement order no. 4 in the order dated 15 October 2014 – where application is opposed by Applicants – where Applicants have applied by way of application in pending proceeding for an order for indemnity costs against the First and Second Respondents – where Applicants seek costs of investigations pursuant to the SPA
COUNSEL:
Applicants: Mr Litster QC and Mr Beehre of counsel.
First and Second Respondents: Self-represented by Anthony Joseph Dender.
Third Respondent: Mr Skoien of counsel.
SOLICITORS:
Applicants: Andrew Morris Legal Practice
First and Second Respondents: Self-represented
Third Respondent: Sunshine Coast Regional Council Legal Service
On 5 December 2014 I made orders in terms of paragraphs 1 and 2 of the Applicants’ Application in Pending Proceedings filed 2 May 2014, and I refused an oral application made by Mr Dender on behalf of the First and Second Respondents to extend the time referred to in paragraph 5 of the order I made on 15 October 2014. I indicated to the parties that I would publish reasons in the following week. On the afternoon of 5 December 2014, my Associate was contacted by a solicitor on behalf of the First and Second Respondents asking for a copy of the orders made that day and was referred to the Registry. As the effect of the second order made is that order 4 of the 15 October order will come into effect on 10 December 2014, effectively closing down the Second Respondent’s dog kennel business at Peregian until an effective permit is obtained, I have published these necessarily brief reasons to assist all parties.
Brief background
The order made 15 October 2014 is in the following terms:
“IT IS DECLARED THAT:
(a) the development permit (the ‘Building Permit’) for building works for a dog kennel structure (the ‘Dog Kennel Building’) dated 7 July 2006, issued by Noosa Building Certifiers, in respect of land at 64 Murdering Creek Road, Peregian Beach in the State of Queensland (the ‘subject land’):
(i) is not consistent with the earlier development permit (the ‘MCU Approval’) granted on 14 January 2005 by the Planning and Environment Court for a code assessable material change of use for animal keeping (boarding kennels) on the subject land, in that the form and layout of the Dog Kennel Building is materially inconsistent with the form and layout of the dog kennel building authorised by the MCU Approval;
(ii) was granted contrary to section 84 of the Building Act 1975; and
(iii) is invalid and of no effect;
(b)the use of the subject land by the First Respondents and/or the Second Respondent for the purposes of a dog kennel facility (the ‘Dog Kennel Use’):
(i) has not complied with, and continues to not comply with, conditions 12, A4, A5, A6, A10, A31, A13 and C4 of the MCU Approval;
(ii) has constituted, and continues to constitute, a development offence against section 580 of the Sustainable Planning Act 2009 (the ‘SPA’); and
(iii) has constituted, and continues to constitute, an offence against section 430 of the Environmental Protection Act 1994 (the ‘EPA’);
(c)the commencement of the use of the subject land by the First Respondents and/or the Second Respondent in about February 2011 for the purposes of a dog agility training centre (the ‘Dog Training Use’):
(i) constituted a material change of use under the SPA;
(ii) constituted assessable development under the SPA;
(iii) was earned out without an effective development permit authorising that use; and
(iv) constituted a development offence against section 578 of the SPA;
(d)the noise generated by the Dog Kennel Use has unlawfully caused, and continues to unlawfully cause, material environmental harm in breach of section 438(2) of the EPA; and
(e) the noise generated by the Dog Training Use has unlawfully caused, and continues to unlawfully cause, environmental nuisance in breach of section 440(2) of the EPA;
AND IT IS ORDERED THAT:
1. the Building Permit be set aside;
2. the First Respondents and the Second Respondent:
(a) immediately cease the Dog Training Use; and
(b) not recommence the Dog Training Use, unless and until either there is an effective development permit for the Dog Training Use or the Dog Training Use is otherwise authorised by law;
3. the First Respondents and the Second Respondent:
(a) immediately cease exercising dogs as part of the Dog Kennel Use on any part of the subject land outside the mounded area (surrounding the Dog Kennel Building) shown on the plans approved under the MCU Approval; and
(b) not recommence exercising dogs as part of the Dog Kennel Use on any part of the subject land outside the mounded area (surrounding the Dog Kennel Building) shown on the plans approved under the MCU Approval, unless and until either there is an effective development permit for that activity or that activity is otherwise authorised by law,
save that the restriction on exercising dogs outside the mounded area on the subject land shall not preclude the exercise of a single dog at any one time outside the mounded area, but only:
(i) between the hours of 7am and 5pm;
(ii) with a dog on a leash; and
(iii)no more than 15 metres from the northern boundary of the subject land;
4. The First Respondents and the Second Respondent:
(a) immediately cease the Dog Kennel Use; and
(b) not recommence the Dog Kennel Use, unless and until:
(i) either there is an effective development permit for the Dog Kennel Building or the Dog Kennel Building is otherwise authorised by law; and
(ii) either there is an effective development permit for the Dog Kennel Use or the Dog Kennel Use is otherwise authorised by law
5. the order in paragraph 4 herein is stayed until 10 December 2014;
6. by 29 October 2014 the First Respondents and the Second Respondent shall:
(a) engage a suitably qualified acoustic engineer to assess the noise from the Dog Kennel Use after the performance of the works identified in paragraphs 7(a), 7(b) and 7(c) and to provide certification (including results of measurements and analysis of those measurements) as to whether that noise meets the perfonnance standard in Condition 12 of the MCU approval with an occupancy rate for the Dog Kennel Building of not less than 90%;
(b) provide to the Applicants and the Third Respondents the name, contact details and qualifications of the acoustic engineer appointed under paragraph 6(a) together with a letter of engagement of that engineer; and
7. by 26 November 2014 the First Respondents and the Second Respondent shall:
(a) repair or replace the acoustic fence on the acoustic mound to the west of the Dog Kennel Building to ensure that there are no gaps between the fence palings and that the timber meets the minimum weight requirements for such a fence of 12.5kg/m2;
(b)repair or replace the acoustic fence on the acoustic mound to the south of the Dog Kennel Building to ensure that there are no gaps between the fence palings and that the timber meets the minimum weight requirements for such a fence of 12.5kg/m2;
(c) perform the following interim works to close the gaps on the western and southern side of the Dog Kennel Building, as identified by Mr Paul King in the joint expert report, namely:
(i) works to ensure that all exterior doors on the western and southern sides of the Dog Kennel Building are solid and seal to solid jams, including rubber seals to the base;
(ii) works to completely enclose the gaps to the underside of the roof of the Dog Kennel Building;
(iii) installation of upgraded insulation to the block work within the Dog Kennel Building;
(iv) completely enclose of any remaining gaps (sic) in the exterior of the Dog Kennel Building; and
(v) installation of such mechanical ventilation as is necessary to ensure the wellbeing of both animals and humans within the Dog Kennel Building;
(d) prepare a draft Noise Management Plan, as identified by Mr Paul King in the joint expert report;
(e) provide the Applicants and the Third Respondent with:
(i)a statement confirming that the works identified in paragraphs 7(a), 7(b) and 7(c) have been completed;
(ii)a copy of the draft Noise Management Plan prepared under paragraph 7(d) herein;
(iv)a statement from the suitably qualified acoustic engineer engaged under paragraph 6(a) herein identifying the expected time for the performance of noise measurements under paragraph 6(a) and the time for the provision of the noise certification (including results of measurements and analysis of those measurements) under paragraph 6(a);
(f) either make (and provide to the Applicants and the Third Respondent):
(i) a request to the court for a permissible change to the MCU Approval to authorise the Dog Kennel Use involving the use of the Dog Kennel Building for the keeping of dogs; or
(ii) a development application to the Third Respondent for a development permit for material change of use to authorise the Dog Kennel Use involving the use of the Dog Kennel Building for the keeping of dogs;
8. The First Respondents and Second Respondent shall pay the costs of Mr Paul King to peer review the certification provided under paragraph 6(a) and the draft Noise Management Plan referred to in paragraph 7(d);
9. the matter be listed for further hearing on 5 December 2014 at 9.30am;
10. the First Respondents shall provide any potential purchaser with a copy of this Order and any order varying this Order prior to the signing of any contract for the conveyance of the subject land;
11. the parties have liberty to apply upon the giving of three (3) clear business days’ notice; and
12. Costs are reserved.”
This order came after a contested three day hearing in which the Applicants were represented by Mr Litster QC and Mr Beehre of counsel, and the Council was represented by Mr Skoien, and Mr Dender represented both First and Second Respondents.
The hearing was the culmination of proceedings commenced by the Applicants (the Younies) on 21 October 2013 by way of originating application, seeking (effectively) the orders they ultimately obtained on 15 October 2014. That final order came after discussions between the parties on 15 October 2014 and was in effect an order made by consent, although the making of enforcement orders necessarily involves an exercise of discretion.
The Younies are the neighbours of Mr and Mrs Dender at West Peregian. As the record reveals, the obtaining of a development permit by a company Reservilt Pty Ltd (controlled by Mr and Mrs Dender) for dog kennels on their land, was a long and arduous process involving very detailed analysis and evidence, particularly relating to conditions of the approval relating to noise attenuation.
After a hotly contested hearing, on 12 March 2002, I dismissed an appeal against a decision by the then Maroochy Shire Council to refuse Reservilt’s application for a material change of use for a code assessable permit to establish dog kennels on the land at Peregian: Reservilt Pty Ltd v Maroochy Shire Council [2002] Q.P.E.L.R. 388. As can be seen from the reasons, noise attenuation was of primary importance. The Younies could not participate in those legal proceedings as the proposal was code assessable only.
Reservilt successfully appealed my decision: Reservilt Pty Ltd v Maroochy Shire Council [2003] Q.P.E.L.R 1777; essentially relating to an error found by the majority of the Court by me in applying the onus of proof provisions in the Integrated Planning Act 1997. The effect of the Court of Appeal’s decision was to allow the appeal against Council’s refusal and to refer the matter back to this court for a conditions hearing.
This again was hotly contested and proceeded before me over many days: Reservilt Pty Ltd v Maroochy Shire Council [2004] Q.P.E.L.R 71 and included an extraordinary challenge (rejected by me) on behalf of Reservilt to the validity of the approval of an extension granted by a permit from the council to the Younie residence next door. As can be seen from my reasons, the approved plans (which came so much into focus in these proceedings), were not the subject of any argument, and even the noise conditions had largely been resolved. The dispute related to other conditions which are of no relevance now.
Ultimately, this court gave judgment which incorporated extensive conditions on 14 January 2005. That approval included preliminary approvals for operational and building works (the MCU approval).
Reservilt (controlled by either Mr and Mrs Dender or Mrs Dender alone from 2009-2013) was deregistered by ASIC on 12 April 2013. From June 2009, the Second Respondent became the owner of the dog kennel business operated on the land owned by Mr and Mrs Dender. They controlled the Second Respondent. For convenience, I will collectively refer to the First and Second Respondents as “the Denders”.
The MCU approval bound the owners of the land at all times namely Mr and Mrs Dender, and authorised development only generally in accordance with the approved plans designated as RESERVILT 01 and RESERVILT 02. On the 07.07.06 Reservilt obtained a development approval from Noosa Building Certifiers for building works as required by the MCU approval. The certifier was a private certifier owned at that time by the Noosa Shire Council. The certifier has not provided an affidavit as to what occurred nor has he given evidence in these proceedings. As the evidence in these proceedings indicates, Mr Dender project managed the construction of the kennel building.
A brief summary of these proceedings
The Younies both filed affidavits in support of their application. To understand the complexity and extent of the evidence, for example, Mr Younie’s affidavit with exhibits extends to over 500 pages.
The orders made 15.10.14 essentially vindicate completely the steps taken by the Younies to seek declarations and enforcement orders in the face of Council’s ongoing failure to take such action over many years. The orders made also confirmed that the Denders had from about February 2011 used the land for a dog agility training centre unlawfully, which, I understand has fully ceased at this point and time.
Initially in these proceedings the Denders were legally represented. As can be seen from the correspondence emanating from the Denders’ then solicitors exhibited (for example) to the affidavit of Ms Formosa (the Younies’ solicitor) filed by leave on 07.02.14, it was their intention to contest the application, but indications were then given by the solicitor that admissions may be made to obviate the need for proof, which admissions were never made. A number of orders were made during 2014 directing the Denders to file material by certain times. These orders were never complied with.
The Denders commenced to act for themselves in September 2014, at a time when the trial had been listed for October since 11 April 2014. The orders made on 12.09.14 by this Court, giving the Denders further time to file material, which Mr Dender then told the Court he intended to do, was not complied with. Mr Dender indicated to Judge Long that day that he intended to engage new legal representatives but he never did. It is suffice to say, the history of the litigation as indicated by the file, is replete with failures by the Denders to comply with Court orders.
The October hearing
At the commencement of the hearing on 13 October 2014, Mr Dender confirmed to me that he was representing the Denders and had not sought further legal advice and was happy for the matter to proceed.
Mr Litster QC on behalf of the Younies gave an extensive opening. Even at that stage it was open to the Denders to make concessions but none were made. Mr Litster QC clearly articulated his client’s case and it would have been obvious to an intelligent person like Mr Dender that if those contentions were made out on the evidence the Younies would be wholly successful in their application.
While the Denders had been legally represented, an acoustic expert Mr Brown had been engaged by them, and he and Mr King (the Younies’ noise expert) had prepared a joint report. That joint report was in evidence before me via an affidavit sworn by Mr Paul King. Mr Dender indicated that he did not intend to call Mr Brown. The Younies had advised Mr Dender in advance that they required Mr Brown for cross-examination but as he was not to be relied upon by Mr Dender his evidence to the extent that it varied from Mr King’s opinion evidence could not be considered.
Mr Dender did not require Mr King for cross-examination, but he was called to assist the Court, and his evidence was of significant potential benefit to the Denders because he proposed solutions that could meet the concerns of the Younies despite the many breaches of the law committed by the Denders. In fact Mr Dender did cross-examine Mr King. Mr Younie was called and he was briefly cross-examined by Mr Dender, but in effect his evidence was unchallenged. Mrs Younie and other witnesses were not required for cross-examination.
The evidence relied upon by the Younies established (in my opinion) to a very high standard close to the criminal standard that:
1. The building works the subject of the permit were not in accordance with the plans approved by the Court, and involved a significantly different kennel design, in that on the Court approved plans, the dog run areas were to be built inside the structure surrounded by the enclosed kennels, while on the plans attached to the permit, the dog run areas are external to the concrete structure that houses the kennels. Further on the Court approved plans concrete block walls were indicated to surround the dog run area, while on the plans the subject of the permit, chain wire fencing surrounds the dog run area.
2. These differences remove noise attenuation measures, required by the report of Reservilt’s own acoustic expert which report formed part of the MCU approval and the differences significantly increased noise impacts on the Younies’ premises beyond acceptable levels.
3. The building actually constructed under the supervision of Mr Dender, itself varied from the plans approved by the invalid permit, particularly relating to the orientation of the structure on the land, again reducing noise attenuation so critical to the MCU approval.
4. The Younies had made many complaints to Council and to the Denders over the years about noise which had not been adequately dealt with. Indeed the Denders approach ( not articulated in any cross-examination of Mr Younie) was to blame them for essentially making false complaints to Council.
5. From November 2006, when the use commenced, the Denders (including Reservilt) contravened, and continued to contravene the conditions of the MCU approval referred to in Declaration (b)(i) of the October Order.
6. The cost to the Denders of constructing the building works as they did was significantly less than would have been the costs of complying with the plans approved by the Court.
All of this is confirmed by the order of 15 October 2014 to which the Denders agreed.
Mr Dender maintained on oath that he had not seen the MCU approved plans until they were produced to him some months prior to the hearing after he had dismissed his solicitors. Given the history of the proceedings, that claim is completely untenable and completely inconsistent with him accepting the order of 15 October 2014. If true, it would constitute major accusations of professional misconduct against Reservilt’s lawyers in those proceedings and against his solicitors in these proceeding until their retainer was terminated. It simply defies belief that experienced planning lawyers such as the ones involved in this implied allegation, would not have discussed with Mr Dender the Plans to be approved and approved by the Court.
The only concession that Mr Dender was prepared to make was that noise levels might have been exceeded over the course of the use. He claimed that he would never have agreed to the MCU approved plans for animal welfare reasons. Of course in the absence of those plans in that form, no approval would have been forthcoming. In my view his claim in this regard was disingenuous.
Mr Dender conceded (as he had to) having only recently seen the court approved plans (on his evidence) that the building constructed was completely different from the building proposed in the approved plan.
Mr King in his evidence proposed a series of measures designed to provide appropriate noise attenuation to the existing illegal structure. As I presently recall he thought the works would cost between $25,000 and $50,000.
In cross-examination by Mr Skoien, Mr Dender agreed that to a significant extent he was prepared to immediately undertake the work proposed by Mr King. In further cross-examination by Mr Litster he contended that he had “said it all the way along” that he was prepared to do that work, however he conceded that such a proposal was absent from his statement of evidence produced late and not in proper form (Ex 24), and not conceded until cross-examination by Mr Skoien after lengthy cross-examination by Mr Litster QC. He conceded that if he had made that concession earlier, these proceedings could have been shortened considerably.
He said that the works the subject of his cross-examination by Mr Skoien would take 4-6 weeks. At the conclusion of his evidence Mr Dender, in effect, asked for an adjournment to retain counsel to address me on legal issues. I told him if that occurred, it would probably only be on the basis of an adverse costs order being made against him in relation to the costs of the other parties thrown away by the adjournment.
I then had a lengthy exchange with Mr Dender which is recorded at 3-21 to 3-25 of the transcript, and ultimately he agreed that he was prepared to negotiate in good faith with the Younies which, I infer occurred, resulting in the order late in the third day of the hearing. I was informed that he order was by consent. The effect of orders 4 and 5 were specifically adverted to. Mr Dender told me he was “very happy” with the order.
That order placed very significant legal responsibilities on the Denders. It confirmed that they had fragrantly breached conditions of the court MCU approval over many years designed to specifically reduce the noise from the use and to reduce to acceptable levels the impact on the Younies.
When the review came on for hearing on 5.12.14, the only evidence of any compliance with the order came from an affidavit of Ms Formosa. By then, the Denders had been served with the costs Application in Pending Proceedings, and no material had been filed in response to Ms Formosa’s affidavit in support of that application and Mr Dender did not want to say anything to me in response to the application and/or the material.
In relation to compliance, the affidavit of Ms Formosa filed by leave on 5.12.14 indicates:
(a) the orders made 15.10.14 were served on the Denders on 21.10.14;
(b) on 29.10.14 she received an email from Adam Seaton, a town planner, advising that ASK Acoustic had been engaged by the Denders in compliance with order 6;
(c) on 2.12.14 she caused a copy of a letter dated that date to be served on the Denders. That letter relevantly states:
“You confirmed on 29 October 2014 you have engaged an acoustic engineer.
Paragraphs 7(a), (b) and (c) of the 15 October order also identified works that were required to be completed by 26 November 2014.
Paragraph 7(d) of the 15 October order required you to prepare a draft Noise Management Plan by 26 November 2014.
Paragraph 7(e) of the 15 October order required you to provide our clients and the Council with the following by 26 November 2014:
1.a statement confirming that the works identified in paragraphs 7(a), 7(b) and 7(c) of the order have been completed;
2.a copy of the draft Noise Management Plan;
3.a statement from your acoustic engineer.
We have received none of those documents.
Paragraph 7(f) of the 15 October order required you to either make a request to the court for a permissible change to the MCU approval to authorise a dog kennel use involving the use of the dog kennel building for the keeping of dogs or make a development application to the Council for a development.
Paragraph 7(f) of the 15 October order also required you to provide these documents to our clients and the Council.
We have received none of those documents.
Would you please advise us as a matter of urgency whether you propose to attempt to further comply with the 15 October order?
Stay expires on 10 December 2014.
The 15 October order among other things ordered that you immediately cease and not recommence the dog kennel use unless and until either there is an effective development permit for the dog kennel use or the dog kennel use is otherwise authorised by law.
The 15 October order stayed the operation of that aspect of the court’s orders.
That stay will expire on 10 December 2014 unless you make an application for a further stay.
Would you please advise us as a matter of urgency whether you propose to apply for a further stay?
If you propose to apply for a further stay please provide, as a matter of urgency, all material on which you propose to rely in support of that application together with a formal application identifying the grounds on which you will contend a further stay should be granted.
Costs application
When this matter is before the court on 5 December 2014 we will seek an order that you pay our clients’ costs in these proceedings on an indemnity basis (including investigation costs and the costs of two counsel).
Please find enclosed an Application in Pending Proceedings which identifies the grounds of that application.
We also enclose an affidavit of Ms Formosa on which our clients will rely in addition to evidence already before the court.”
(d) on 3.12.14 at 11.26 a.m. Ms Formosa received another email from Mr Seaton which attached an email trail between his office and ASK (Mr Pugh being the relevant acoustic expert);
(e) in response she says in her affidavit filed by leave on 5.12.14:
“(a)I have no record of Mr Pugh from ASK contacting my office on 17 November 2014;
(b)I received two messages from Mr Pugh on 19 November 2014;
(c)I telephoned Mr Pugh on 19 November 2014;
(d)Mr Pugh indicated that he needed to undertake testing on a Friday night to ensure at least 90% occupancy;
(e)He indicated that there would be difficulties to be ready for testing on Friday 21 November 2014 and that he would need to confirm at least 90% occupancy;
(f)He also suggested 28 November 2014 and indicated what would be required;
(g)He also indicated that he had not yet been to the site;
(h)I called Mr Younie to confirm what day would be suitable;
(i)Mr Younie left a message for me on 20 November 2014 that he would not be at his home on 21 November but that 28 November 2014 was suitable;
(j)I had further contact with Mr Pugh on 28 November 2014 because Mr Pugh had arrived at Mr Younie’s home, it was raining heavily and there was nobody there;
(k)I then ascertained that Mr Younie had been caught up in bad weather and I gave Mr Pugh Mr Younie’s telephone number.
9.I have had no other communication from or behalf of the First Respondents or the Second Respondent since 15 October 2014.”
The rest of her uncontested affidavit was to the effect that the Denders had otherwise not complied with the October order.
She refers in that affidavit to some photographs taken by Mr Younie of changes to the acoustic fence since 15 October 2014 which is relevant to order 7. The photographs reveal only that holes had been cut in the fence to accommodate tree branches, a measure specifically discouraged by Mr King in his unchallenged evidence at the hearing to the effect that any holes in an acoustic fence will greatly reduce its overall noise attenuation capability.
As I have noted, the Denders have not placed before the court any sworn evidence to support the contentions in the ASK emails, not even an affidavit from Mr Dender himself who had said on oath the works would take four to six weeks. Ms Formosa has received no request formally for an extension of the time for the stay taking effect. From Mr Dender’s evidence at the hearing, the pet resort is a very successful business which has 90% occupancy for 75% of the year over a whole year. Not surprisingly, he told me that holiday periods are the busiest, involving 100% occupancy for most of the time.
In complete conformity with the attitude he took to the proceedings until his “Damascus Road” (to use Mr Litster QC’s expression) change of heart after all the evidence was before me, I comfortably conclude that the Denders are not committed to strict compliance with the orders, and that the application to extend the stay is simply an attempt to unfairly buy more time at the expense of the Younies’ quiet enjoyment of their property, and at the expense of the proper enforcement of the law. I say “the Younies’ property” (which it is); however, sadly in accordance with Mr Younie’s oral evidence (unchallenged), their marriage has suffered (I infer in some part due to the stress occasioned by the flagrant, ongoing breaches of the development approval by the Denders) in that he told me that his teenage son had moved away because of the noise and that he and his wife had separated a few months before the hearing. She has left the residence and he remains at the residence with one of their children.
The Younies opposed any further concessions to the Denders as Ms Formosa clearly foreshadowed in her letter of 3.12.14. To grant Mr Dender’s application would be to subject Mr Younie to further breaches in relation to noise over the busiest period of the year, in circumstances which, until 15.10.14, Mr Dender was not prepared to make any concessions despite what he must have known about breaches of the development permit and the effect of the noise on the Younies.
There is also a very significant public interest in ensuring that orders such as this, designed to ensure compliance with town planning law, are strictly complied with, particularly in circumstances in which the parties most affected consented to the orders with full knowledge of the consequences. This is even more so where it is a private citizen and not the administering authority, the Council, that has successfully taken action to achieve this result.
For these reasons, the oral application to extend the stay in order 5 is refused.
The costs application
The proceedings commenced at a time when s 457 of the SPA had commenced in its present form. Section 457(9) applies, so that the costs are at the discretion of the court but follow the event unless the court otherwise orders.
Relevantly, the Younies, as private citizens, commenced proceedings under s 601 and were wholly vindicated by the order made on 15.10.14. As I have indicated, the Denders (and Reservilt) gained significant commercial advantage by building the kennel building completely contrary to the court approved plan. Until 15.10.14 Mr Dender on behalf of the Denders conceded very little despite multiple continuing breaches of the conditions of the court MCU approval over many years, with significant adverse consequences to the Younies. It is a clear case in which the Denders have participated in the proceeding with no reasonable prospect of success. The Denders also failed on many occasions to comply with the court’s procedural requirements as contained in many directions orders. Their failures to make concessions or to file material required the Younies to make extensive investigations which are fully particularised in Ms Formosa’s affidavit filed in support of the costs application (court documents 55 and 56).
It was a case involving some complexity, appropriately requiring two counsel in my opinion: Yalgan Investments Pty Ltd v Albert Shire Council [2000] 2 Qd R 222. Many of the features deemed relevant in that case (see [22]) occur in this case. In this regard, and generally, I regard the Denders’ participation in the proceedings as “frivolous and vexatious” in the sense in which that term used in early costs provisions in this court was construed, for example in Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271. There is no doubt that this court has a discretion to award indemnity costs: Gold Coast City Council v Metrostar Pty Ltd & Ors [2005] Q.P.E.L.R. 17. This is a clear case in which indemnity costs should be ordered.
I order in terms of paragraphs 1 and 3 of the Application in Pending Proceedings filed in this court on 2 December 2014.
I publish my reasons.
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