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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPEC 44
GILLION PTY LTD (ACN 102 972 001)
SCENIC RIM REGIONAL COUNCIL
JENNIFER PEAT & ORS
(1st, 69th to 105th and 108th co-respondents by election)
STUART WRIGHT & ORS
(2nd to 12th co-respondents by election)
JEANETTE LOCKEY & ORS
(13th to 61st co-respondent by election)
WENDY ALLENDER & ORS
EAGLE HEIGHTS VILLAGE ASSOCIATION INC
TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC
THE CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009
(109th co-respondent by election)
2424 of 2015
Planning and Environment
4 October 2019.
8 March 2019.
Morzone QC DCJ
PLANNING AND ENVIRONMENT – APPLICANT APPEAL – COSTS – council applies for costs in wake of refusal of appeal – power to award costs in s 457 of the Sustainable Planning Act 2009 – the relative success of the parties in the proceeding – whether decision appeal conflicts with a relevant instrument – whether a party commenced or participated in the proceeding without reasonable prospects of success – whether the proceeding involved an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest.
Sustainable Planning Act 2009 (Qld)
Planning and Environment Court Act 2016 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Altitude Corporation Pty Ltd v Isaac Regional Council (No 2)  QPELR 139.
Bell v Brisbane City Council & Ors  QCA 84.
Cox v Brisbane City Council (No 2)  QPELR 92.
Ferreyra & Ors v Brisbane City Council & Anor (No 2)  QPEC 13.
Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPELR 711.
Latoudis v Casey (1990) 170 CLR 534.
Oshlack v Richmond River Council (1998) 193 CLR 72.
Weightman v Gold Coast City Council  Qd R 441.
C Hughes QC & H Stephanos for the appellant
R Traves QC & P Djohan for the respondent
HWL Ebsworth Lawyers for the applicant/appellant
Corrs Chambers Westgarth Lawyers for the respondent
- The respondent, Scenic Rim Regional Council, seeks payment of its costs from the appellant in the wake of the appellant’s unsuccessful appeal.
- The parties have provided detailed written and oral submissions, which I have considered, and for which I am very grateful.
- The land had been used for commercial ground water extraction over a number of years, from time to time, since 1991.
- In 2010, the court ordered the appellant to cease using the land for the purpose of Commercial Groundwater Extraction without a development permit. The order was suspended to facilitate a development application to regularise the use.
- The appellant applied for a material change of use of premises for Commercial Groundwater Extraction on or about February 2011, but the council refused that development application. The appellant’s appeal against the council’s refusal was dismissed by Robertson DCJ who found that:
- (a)There was no pre-existing lawful use right attaching to the land lawfully permitting commercial groundwater extraction from the land;
- (b)Having regard to the reasonable expectations of residents, the proposed development would result in an unacceptable impact on amenity and character to the residents of Power Parade;
- (c)If considered in isolation, that conflict would be categorised as minor in nature, but was not ‘mechanical’ or ‘technical’;
- (d)The conflict was ‘significant’ and when the planning scheme was “read as a whole, and in a practical and sensible way, it is clear from its Planning Scheme that Council did not want a use such as this anywhere in the Shire but, in anticipation that such a use may be applied for, it set a high bar by making the use an inconsistent use in all Zones and relevantly, in the Tamborine Mountain Zone”;
- (e)The appellant’s evidence did not demonstrate a strong and sustained demand for the groundwater beneath the land;
- (f)It was not accepted that the “the need is significant even accepting that there is a need for bottled water in the community generally as demonstrated by the increasing demand”;
- (g)The ‘grounds’ relied on by the applicant were not sufficient to overcome the significant conflict with the planning scheme.
- The appellant was refused leave to appeal to the Court of Appeal on 21 February 2014. The use of the land for commercial groundwater extraction was required to cease on 28 April 2014.
- The appellant made a further application on 12 August 2014 with a view to meeting critical deficiencies found in the previous appeal. The council received 1,157 properly made submissions. On 19 May 2015, the council refused the development application.
- The appellant appealed council’s decision. On 28 April 2017 the court allowed minor changes to the application. In essence, the changed proposal involved: the extraction of water from a sub-artesian source accessed by bore; the storage of extracted water on-site in large water tanks; transportation of water off-site by third parties to local residents and businesses; bottling facilities off the Mountain; provision water for charitable purposes; and firefighting purposes.
- The respondent council, and another 109 co-respondents-by-election opposed the appeal. The changed application proceeded to hearing and involved contest about:
- The nature and extent the proposed development conflicts with the terms of the planning scheme;
- Whether there is tension between that application of the planning scheme and the public interest because, the planning scheme failed to anticipate, or properly deal with, the existence of circumstances that have created a need for a commercial groundwater extraction in the public interest;
- If there is tension, whether any grounds are relevant to the part of the application in conflict with the planning scheme but otherwise in the public interest;
- Whether the grounds are sufficient, in the public interest, to justify approving the application notwithstanding the conflict with the planning scheme.
- The appeal was determined against the appellant on 5 October 2018.
- I found that the planning scheme set a high bar by making the use an inconsistent use in the Tamborine Mountain Zone and all other zones. A decision to approve the development application would result in a significant conflict with the planning scheme.
- Water is obviously a most important necessity of life. There was evident demand for the purchase of ground water extracted from sources on Tamborine Mountain. The importance of water for the wider community was also evident, underscored by the growing bottled water industry and demand for bottled water in the foreseeable future. I had no doubt that the provision of potable water from sources on Tamborine Mountain, to local consumers was a matter of public and community interest, particularly when:
- (a)Reticulated water is not available on Tamborine Mountain and, in all likelihood, never will be. There are no rivers or streams on Tamborine Mountain.
- (b)Existing private tanks and bores fail, from time to time - water tanks for residents and businesses run dry, and that water bores are subject to fail. There was inherent uncertainty and variability of the local groundwater supply that affects bores on certain parts of Tamborine Mountain.
- (c)There was a supply that exists in the aquifer on the Tamborine Mountain; and
- (d)Amenity, safety, traffic and town planning concerns attend the notion of importing the water from off the mountain, and perhaps even from beyond the Scenic Rim.
- However, I concluded on the evidence that the residents and businesses of Tamborine Mountain were enjoying reliable bulk supply of commercial potable water.
- While unusual, I concluded that the planning scheme provisions were consistent with a deliberate planning strategy, anticipated the existence of circumstances that create a need for commercial groundwater extraction in the planning area, and struck an overall balance in the public interest, between the many interests potentially affected by the planning scheme. Consequently, I founded that this was not an exceptional case exposing tension between the planning scheme and the public interest.
- Therefore, s 326(1)(b) of Sustainable Planning Act 2009 (Qld) (SPA) was not engaged in this matter, and that was the end of the matter according to Bell v Brisbane City Council & Ors.
- In any event, I considered whether the appellant’s grounds were sufficient, in terms of the public interest or benefit, to grant an approval despite significant conflict with the planning scheme. I determined that:
- (a)There was no demonstrated economic need to supply mountain spring water for bottling and sale to the public (including the Tamborine Mountain community);
- (b)There was no unsatisfied town planning and community need for the provision of water for purchase and consumption by local residents and businesses;
- (c)There was enough available water for firefighting purposes for the community that does not have a reticulated water supply;
- (d)The donation of water for external charitable purposes was positive and voluntary but insufficient to warrant approval; and
- (e)Whilst the absence of negative impacts or detrimental effects was clearly relevant, they are not determinative in this case.
- Consequently, I dismissed the appeal.
- The council seeks its costs because, notwithstanding the unsuccessful earlier appeal, the appellant had poor prospects with significant hurdles overcoming conflicts with the scheme, and was unsuccessful by falling well short of the evidentiary onus. The council places particular reliance on the appellant unsuccessful appeal (s 457(2)(a)) and conflicts with the scheme (s 457(2)(e)). In is argues that the council should not in such circumstances twice be required to bear its own costs.
- The appellant resists the application and urges that each party ought bear their own costs of the appeal because the application was for commercial ground water by an existing operator, which had purchased land as a going concern for that purpose and previously enjoyed planning recommendation for approval, to provide high quality water for commercial bottlers and to service the local community in the public interest.
- The appeal was commenced on 17 June 2015 under s 461 of the SPA and had not ended, prior to the commencement of the Planning Act 2016 (Qld) on 3 July 2017. Therefore, by operation of the transitional provisions in s 311(2)(a) & (2) of the Planning Act apply and s 76(1)(a) & (2) of the Planning and Environment Court Act 2016, the costs regime under the SPA continues to apply to this appeal.
- Section 457 of the SPA relevantly provides:
- (1)Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.
- (2)In making an order for costs, the court may have regard to any of the following matters –
- (a)the relative success of the parties in the proceeding;
- (b)the commercial interests of the parties in the proceeding;
- (c)whether a party commenced or participated in the proceeding for an improper purpose;
- (d)whether a party commenced or participated in the proceeding without reasonable prospects of success;
- (e)if the proceeding is an appeal against a decision on a development application and the court decides the decision conflicts with a relevant instrument as defined under section 326(2) or 329(2), whether the matters mentioned in section 326(1) or 329(1) have been satisfied;
- (f)if the proceeding is an appeal to which section 495(2), applies and there is a change to the application on which the decision being appealed was made, the circumstances relating to making the change and its effect on the proceeding;
- (g)whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding;
- (h)whether a party has acted unreasonably leading up to the proceeding, including, for example, if the proceeding is an appeal against a decision on a development application, the party did not, in responding to any information request, give all the information reasonably requested before the decision was made;
- (i)whether a party has acted unreasonably in the conduct of the proceeding, including, for example-
- by not giving another party reasonable notice of the party’s intention to apply for an adjournment of the proceeding; or
- by causing an adjournment of the proceeding because of the conduct of the party;
- (j)whether a party has incurred costs because another party has introduced, or sought to introduce, new material;
- (k)whether a party has incurred costs because another party has not complied with, or has not fully complied with, a provision of this Act or another Act relating to a matter the subject of the proceeding;
- (l)whether a party has incurred costs because another party has defaulted in the court’s procedural requirements;
- (m)whether a party should have taken a more active part in a proceeding and did not do so.
- (3)Subsection (2) does not limit the matters to which the court may have regard in making an order as to costs.”
“If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott, at 111.”
- Similarly, in the same case, McHugh J said:
“An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation: Kelly v Noumenon Pty Ltd (1988) 47 SASR 182 at 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party. In Cilli v Abbott (1981) 53 FLR 108, Keely, Toohey and Fisher JJ pointed out (at 111) that “the object of costs is not to penalise; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings”; see also Anstee v Jennings  VLR 144 at 148.”
- It follows that costs must necessarily be awarded on principle, not according to whim or private opinion. This statutory conferral of jurisdiction to award costs gives this court the widest possible power and discretion in the allocation of costs. The discretion must be exercised judicially, that is to say, not arbitrarily, capriciously or so as to frustrate the legislative intent in s 457 of the SPA.
- Section 457(2) provides a list of matters that the court may have regard to in making an order for costs under s 457(1). It is not an exhaustive list, and each matter will be considered in context of the particular circumstances of the case. The exercise of the discretion is not biased to follow the event or specially favourable to the successful party, but all relevant considerations must be weighed and balanced to give effect to the legislative intent in s 457 of the SPA.
- More generally, the SPA provides a specific right of appeal for an applicant in relation to a local authority’s decision on its development application to the court in its specialised jurisdiction. The court hears and determine such appeals by way of a hearing anew. The appellant bears the onus of establishing that the appeal should be allowed. This involves consideration of the nature and extent of any conflict between the proposed development and the planning scheme, any tension between that application of the planning scheme and the public interest, and, if so, the sufficiency of any relevant grounds are sufficient, to justify approval notwithstanding the conflict with the planning scheme. The court may confirm the decision appealed against; or change the decision appealed against; or set aside the decision appealed against and make a decision replacing the decision set aside.
- The relative success of the parties in the proceeding weighs heavily against the appellant for the reasons explained in the written judgment delivered on 5 October 2018.
- The appellant properly accepted that the proposed development conflicted with the planning scheme. The main focus of the case for the appellant in the appeal, like the previous appeal, was the identification and sufficiency grounds despite the undisputed conflict between the proposed development and the planning scheme.
- Informed by the previous appeal, the appellant sought to address perceived deficiencies in the appeal, including: economic need to supply mountain spring water for bottling and sale to the public (including the Tamborine Mountain community); town planning and community need for the provision of water for purchase and consumption by local residents and businesses; fire fighting purposes; and donation of water for external charitable purposes.
- After the hearing the relevant legal test was subject of consideration by the Court of Appeal in Bell v Brisbane City Council & Ors. The Court of Appeal drew a sharp focus on the paramountcy of the planning scheme embodying the public interest and the need to explore tension between that application of the planning scheme and the public interest to engage s 326(1)(b) of SPA to explore grounds in such an exceptional case. The decision refined the test as described by Atkinson J in Weightman v Gold Coast City Council, which had been applied with fidelity in relation to successive analogous provisions.
- Given the scope and influence of the Bell decision, I invited and received further submissions from the parties.
- Whilst the appellant could demonstrate an absence of negative impacts or detrimental effects of the proposed development, the stringency of the planning scheme rendered any conflict insurmountable in light of the evolving law. After considering the evidence and conflicting expert opinion, I was unpersuaded that there was the requisite tension between the application of the planning scheme and the public interest, and was also unpersuaded of exceptional circumstances justifying approval of the development application.
- Therefore, I was bound to conclude that s 326(1)(b) of SPA was not engaged in this matter, and that was the end of the matter according to Bell v Brisbane City Council & Ors. Not withstanding this conclusion, I also found that the appellant’s grounds were insufficient, in terms of the public interest or benefit, to warrant an approval despite significant conflict with the planning scheme.
- The appellant had a legitimate commercial interest in the proceeding, the council properly defended its decision, and the other co-respondents properly joined in the appeal.
- The land had historically been used for ground water extraction before it was purchased by the appellant as a going concern for the same purpose. The appellant carried on ground water extraction operations on Mount Tamborine. However, the scope of the operation on the land was later found to constitute a material change of use in 2004, and the appellant was given a reprieve to regularise the continuing use by making a development application. The development application was refused by the council despite recommendation of approval by its officers. The council’s refusal was upheld in the previous appeal in this court. Consequently, the use ceased.
- The development application subject of this proceeding was a further attempt by the appellant to secure approval for commercial groundwater extraction.
- It seems to me that the appellant did not commence, and no parties participated in the proceeding for an improper purpose. The appellant had purchased the land for the use, relevant infrastructure and capital had been spent, and they sought to resurrect the commercial operation previous carried out on the land.
No reasonable prospect
- I do not accept that the appellant commenced or participated in the proceeding without reasonable prospects of success. The scope of the dispute was tested and refined by the previous appeal, and the appellant sought to meet any residual deficiencies by its new application and further changes. It did so, like all the parties, on the same principles applied in the previous appeal without foreseeing the impact of the recent Court of Appeal authority.
- The proceeding was an appeal against council’s decision on a development application, but the court did not find that the decision conflicted with a relevant instrument as defined under s 326(2), nor that the matters mentioned in s 326(1) have been satisfied. I do not accept that s 457(2)(e) is engaged in the circumstances of this case.
Effect of any change
- The proceeding was an appeal to which s 495(2) applied, but the change to the application was made in appropriate circumstances, was allowed, and the change had no adverse effect on the proceeding.
- The proceeding did involve an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding.
- The private capacity of the appellant to commercially exploit its underground water resource on the land contrary to the public interest embodied in the town planning scheme, necessarily involved considerations of aquifer capacity, adequate water supply to local residents and businesses, emergency services and charitable purposes.
Reasonableness before appeal
- The appellant did not act unreasonably by making and supporting the development application during the integrated state and local government assessment and approval processes for the proposed development. The council and all other parties acted reasonably leading up to the appeal.
Reasonableness of in appeal
- The appellant and no other party has acted unreasonably in the conduct of the proceeding.
- There is no evidence that the council incurred undue costs because another party has introduced, or sought to introduce, new material during the appeal.
Noncompliance with Act
- There is no evidence of any noncompliance with the SPA or another Act, which has caused the council to incur undue costs.
Default in procedural requirements
- There is no evidence of any default in the court’s procedural requirements, which has caused the council to incur undue costs. The changes to the application involved appropriate preparation and presentation, as was necessary for the courts proper determination.
Activity in proceeding
- It could not be said that the appellant should have taken a more active part in a proceeding and did not do so.
- The appellant had a legitimate commercial interest in testing the council’s decision having regard to the historical use of the land, court intervention and previous appeal decision.
- The appellant acted reasonably before and during the conduct of the appeal. It did not commence the appeal for an improper purpose.
- The appeal proceeded on a sufficiently different basis to the previous appeal, with improved changes to strengthen the case. The changes to the application enhanced the appellant’s prospects and did not otherwise adversely affect the proceeding. I do not accept that the appellant commenced and participated in the proceeding without reasonable prospects of success informed by the previous appeal and the common approach to the issues.
- The proceeding clearly involved a matter of public interest of water supply in a small community purposely planned without reticulated water supply for private, business, and emergency uses. The appellant sought to exploit its personal right or interest to supply commercial water, as well as improve the supply to the local community, by tapping the abundant underground resources. The proposal did not have any undue negative impacts or detrimental effects on the community.
- The appellant was unsuccessful in the proceeding. The evolving legal test emerging after conclusion of the hearing drew a sharp focus on the planning scheme’s embodiment of the public interest, which proved insurmountable.
- No costs were unduly incurred by the introduction of any new material, legislative noncompliance, or procedural default.
- Having weighed these matters, each party ought bear their own costs of the proceeding, and I will dismiss the council’s application for costs.
Judge DP Morzone QC
 Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPELR 711 at , ,  – , , .
Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPEC 24.
Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPEC 47.
 Bell v Brisbane City Council & Ors  QCA 84, per McMurdo JA with whom Sofronoff P and Philippies JA agreed.
 Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPEC 47.
 Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, at 563 per Toohey J, at 567 per McHugh J; 97 ALR 45; BC9002896; Oshlack Richmond River Council (1998) 193 CLR 72 at 97;  HCA 11; BC9800310 per McHugh J.
Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ.
Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J; see also Oshlack v Richmond River Council (1998) 193 CLR 72 at 97;  HCA 11; BC9800310 per McHugh J at  – .
 Cf. Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 per Gaudron and Gummow JJ.
 Section 473(3).
 Contrast Uniform Civil Procedure Rules 1999, r 681. Cf. Ferreyra & Ors v Brisbane City Council & Anor (No 2)  QPEC 13 at ; Cox v Brisbane City Council (No 2)  QPELR 92 at ; Altitude Corporation Pty Ltd v Isaac Regional Council (No 2)  QPELR 139 at .
Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPEC 47.
 Bell v Brisbane City Council & Ors  QCA 84, per McMurdo JA with whom Sofronoff P and Philippides JA agreed.
 Weightman v Gold Coast City Council  Qd R 441 at - & - per Atkinson J with whom others agreed, at  per de jersey CJ, and at  per McMurdo P.
 Bell v Brisbane City Council & Ors  QCA 84, per McMurdo JA with whom Sofronoff P and Philippies JA agreed.
 Appeal Book, Volume 2, Part 1, page 121 (Project History). See also Appeal Book, Volume 1, page 31 (Gillion Pty Ltd v Scenic Rim Regional Council & Ors  QPELR 711 at ).
- Published Case Name:
Gillion Pty Ltd v Scenic Rim Regional Council, Jennifer Peat, Stuart Wright, Jeanette Lockey, Wendy Allender, Eagle Heights Village Association Inc, Tamborine Mountain Progress Association Inc and The Chief Executive Administering the Sustainable Planning Act 2009
- Shortened Case Name:
Gillion Pty Ltd v Scenic Rim Regional Council
 QPEC 44
04 Oct 2019