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  • Unreported Judgment

Sunshine Coast Regional Council v McKenna

 

[2020] QPEC 22

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v McKenna [2020] QPEC 22

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(applicant)

V

DAVID MCKENNA AND CHERYL MCKENNA

(respondents)

FILE NO/S:

D32/2018

DIVISION:

Planning and Environment

PROCEEDING:

Application

DELIVERED ON:

15 May 2020

DELIVERED AT:

Maroochydore

HEARING DATE:

Heard on the papers

JUDGE:

Long SC DCJ

ORDER:

The respondents are to pay the applicant’s costs of the proceeding:

  1. (a)
    As to costs to investigate, or gather evidence for, the proceeding, in the amount of $3,580.12; and
  1. (b)
    Otherwise, as agreed or to be assessed on the standard basis pursuant to Chapter 17A of the Uniform Civil Procedure Rules 1999.

CATCHWORDS:

PLANNING AND ENVIRONMENT – COSTS – Where the applicant was successful in obtaining an enforcement order – Where the applicant brought concomitant applications seeking additional relief – Whether costs should be ordered under s 61(1) of the Planning and Environment Court Act 2016 (Qld) – Whether “costs to investigate, or gather evidence for, the proceeding” should be included pursuant to s 58 of the Planning and Environment Court Act 2016 (Qld)

LEGISLATION:

Planning Act 2016 (Qld), s 180, Sch 2

Planning and Environment Court Act 2016 (Qld), ss 3, 4, 11, 36, 37, 48, 58, 59, 60, 61, 62, Sch 1

Planning and Environment Court Rules 2018 (Qld), r 9(b)

Uniform Civil Procedure Rules 1999 (Qld), Ch 17A

CASES:

Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No. 2) [2018] QPEC 59

COUNSEL:

GJ Barr for the applicant

A Williams (Solicitor) for the respondents

SOLICITORS:

Heiner & Doyle for the applicant

P&E Law for the respondents

Introduction

  1. [1]
    The remaining issues in this matter relate to costs, which are sought by the applicant particularly having regard to the enforcement order made by the court on 30 July 2018 and therefore pursuant to s 61(1) of the Planning and Environment Court Act 2016 (“the PECA”). 
  1. [2]
    Some relevant history may be set out as follows:
  1. (a)
    The proceeding before the Court was commenced by way of originating application on 22 March 2018.  That application sought, amongst other things, an enforcement order pursuant to s 180 of the Planning Act 2016 (“the PA”) and may be accepted to be in the nature of seeking relief in respect of the non-compliance of the respondents to complete remediation work including revegetation of an area of land cleared and filled on a property at 155 Clarendon Road, Peregian Beach (described as Lot 24 on SP184091 – “the Property”), in accordance with an order of this Court made, by consent, on 18 November 2016;
  1. (b)
    Although that proceeding was brought in the first instance seeking the punishment of the respondents for contempt of Court and alternatively for other relief, including an enforcement order pursuant so s 180 the PA, the enforcement order was made on 30 July 2018, with acknowledgement of the failure of the respondents to comply, completely, with their obligations under the original order and upon the Court being required to make a ruling as to whether a development offence had been committed, as a necessary condition to making the enforcement order;
  1. (c)
    The application for an order punishing the respondents for contempt was adjourned, so as to give the respondents an opportunity to purge that contempt by compliance with the enforcement order; and
  1. (d)
    Subsequently and on 24 January 2020, an order was made pursuant to s 180(11) of the PA as to the respondents’ compliance with the enforcement order, together with orders to the following effects (all made by consent):
  1. (i)
    That there was no order made upon the other applications in the originating application;
  1. (ii)
    Releasing the respondents from an undertaking given on 20 April 2018; and
  1. (iii)
    Giving directions for written submissions so that this costs application was to be decided on the papers.
  1. [3]
    It is to be noted that the directions for written submissions have not been strictly complied with, although it is only necessary to note that in the applicant’s reply submissions on costs, it has acknowledged that “by administrative oversight” those submissions have been provided outside of the permitted time and leave is sought to rely upon them despite such non-compliance. That reply was filed on 8 April 2020 and in the circumstances and in the absence of any objection emerging from the respondents, it is appropriate to grant the necessary leave and have regard to those submissions.
  1. [4]
    The power of the Court to make the order which is sought by the applicant, is not in question, as far as such an order may be made pursuant to s 61(1) of the PECA.  Further, there is common reference made to the observations in Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No.2).[1] In particular, references to the unfettered nature of the discretion, which is, however, to be exercised in accordance with legal principle, including requirement of exercise consistently with the subject matter, scope and purpose of the legislation, without any presumption that costs should follow the event, or otherwise, and that such should be awarded to indemnify the successful party and not to punish an unsuccessful party. 
  1. [5]
    The respondent contends that an appropriate exercise of discretion is that there be no order as to costs or alternatively, only as to part of the applicant’s claim, having regard to considerations that may be broadly described as follows:
  • That there was only an enforcement proceeding, insofar as the application specifically sought relief pursuant to s 180 of the PA. Otherwise, the alternative relief was in respect of matters falling within the purview of s 59 of the PECA and the general rule that each party bear its own costs;
  • In any event, the Council was only successful to a limited extent in respect of the relief sought, with such relief largely obtained by consent or without objection, save for a ruling, necessary due to defects in the application and materials relied upon in support of it; and
  • The attempts of the respondent to resolve the matter without the necessity for any Court order. 
  1. [6]
    Otherwise, there are further issues raised as to the extent to which the applicant also seeks an inclusion of “investigation costs”, pursuant to s 58 of the PECA.[2]

Costs of the Enforcement Proceeding

  1. [7]
    In the first instance, there would appear to be superficial support for the respondents’ attention to the discrete aspects of the applicant’s originating application in understanding that the general rule as to each party bearing their own costs, in s 59, and the stated circumstances giving rise to the exceptions from that rule, in s 60, are expressed in reference to “a P&E Court proceeding”, which concept is defined in the dictionary in schedule 1 of the PECA to mean:
  1. “(a)
    generally – a proceeding before the P&E Court; and
  2. (b)
    for part 6 – a proceeding, including a part of a proceeding and an application in a proceeding, before the P&E Court”.[3]

As defined by s 4, “P&E Court” is a reference to this Court. And part 6 of the PECA is that which deals with costs (comprising sections 58 to 62). Further and whilst there is no separate definition of the concept of a proceeding, in the PECA, there is a definition of “Planning Act proceeding”,[4] as follows:

“Planning Act proceeding means—

  1. (a)
    a P&E Court proceeding for which the Planning Act is the enabling Act, including a Planning Act appeal; or
  1. (b)
    a declaratory proceeding relating to the Planning Act; or
  1. (c)
    a proceeding for an enforcement order under the              Planning Act.”[5]
  1. [8]
    However and in contrast to the expressed application of sections 59 and 60, to “a P&E Court proceeding”, it should also be noted that the discretion which may be exercised pursuant to s 61(1) of the PECA, arises upon the pre-conditions that “for an enforcement proceeding” the Court “makes an enforcement order or interim enforcement order against a person”. And it is to be further noted that “enforcement proceeding” is defined in s 58 to mean “a proceeding for an enforcement order or interim enforcement order under the Planning Act”.[6] Accordingly and whilst in appropriate circumstances it may be necessary to consider issues that may arise in respect of some part or parts of a “P&E Court proceeding”,[7] in contrast to the application of s 60 (which is engaged in respect of any “P&E Court proceeding”  but requires identification of specified circumstances involving the conduct of a party in reference to the proceeding), s 61(1) is engaged where there is “a proceeding for an enforcement or interim enforcement order under the Planning Act” and when such an order is made against the person.
  1. [9]
    This analysis serves to demonstrate the sufficiency of the applicant’s reliance upon the circumstances that as part of its application to the court, it sought and on 30 July 2018 was granted, an enforcement order, against the respondents, pursuant to s 180 of the PA. Moreover, the submission made for the respondents that “the Court’s jurisdiction … under s 61(1) of the PECA is enlivened only in respect of paragraph 4 of the application and that the Council cannot recover costs associated with the other parts of its application”, should not be accepted, in the sense that the ability of the applicant to obtain an order for costs pursuant to s 61(1) relevantly depends upon there being a “P&E Court proceeding” which is “a proceeding for an enforcement order or interim enforcement order under the Planning Act”. Accordingly, the extent to which any such proceeding is not to be so regarded, will not be determined by the mere fact that alternative or other forms of relief are sought, but may rather depend upon the extent of connection to the enforcement order, which is both sought and made, and the extent to which the proceedings may have been directed to other issues unconnected to the making of an enforcement order.
  1. [10]
    In the present circumstances and subject to dealing with some additional contentions raised including those in respect of attempts to resolve the matter without the necessity of court order, there is an absence of any substantial consideration arising from the concomitant applications for additional relief, so as to detract from the sufficiency and force of those entitling circumstances. In particular, it may be noted that:
  1. (a)
    there was a common nexus to all applications,[8] in that each was premised upon contention of failure by the respondents to completely and effectively comply with an earlier order of the Court as to remediation of illegally cleared land;[9] and
  1. (b)
    whilst no other order apart from the enforcement order made on 30 July 2018, was made in the applicant’s favour, the making of that order was all that was ultimately necessary to achieve the effective outcome sought by the applicant and accepted as suffice to constitute a purging of any contempt on the part of the respondents, or at least, to warrant any further application for such finding unnecessary.

Accordingly, the submissions of the applicant that “the gravamen of the originating application was to enforce a previous order of the court by propounding a variety of possible orders” with that “main point” of the proceeding being determined in its favour and that “the character of the relief obtained reflects that success”, should be accepted.[10] Moreover, it should also be accepted that there is nothing to be discerned from the decision in Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No.2),[11] at paragraphs [13] – [15], in dealing with the particular circumstances of that matter, or otherwise, which detracts from the weight which the applicant seeks and may be given to its success in obtaining the enforcement order as the effective outcome of the proceedings. It may be observed that the other matter was primarily concerned with contentions as to relative success upon separate issues identified and litigated in respect of determining the application for the enforcement order,[12] which is not the effect of the contentions raised in this matter.

  1. [11]
    Neither should there be found to be any substantial detraction from such conclusions, so as to warrant any limitation of the costs to be awarded to the applicant, in any criticism raised as to its conduct of the proceedings:
  1. (a)
    Whilst, as accepted by the applicant, there was a lack of compliance with relevant rules and in particular the absence of the specification in the application of the grounds upon which the orders or relief was sought (as required by Rule 9(b) of the Planning and Environment Court Rules 2018) it should be accepted, as otherwise contended by the applicant, that in light of the affidavit material filed with the application, there appeared to be no substantial difficulty as to an understanding of the essence of the applicant’s contention and none which had any substantial impact upon the progress of this proceeding;
  1. (b)
    There is further difficulty in concluding that any perceived misconception in resort to s 37 of the PECA or in the utility or basis of the inclusion of resort to the declaratory jurisdiction of the Court, in the application, in any way substantially complicated these proceedings.  On the contrary, the very considerations contended by the respondents tend to confirm the outward appearance that this matter substantially progressed in terms of the relief which was obtained by way of the enforcement order, in the context that this was to enforce the completion of obligations arising under an earlier order of the court and the asserted contempt of court involved in disobedience of that order;
  1. (c)
    The result that, ultimately, the proceeding, as far as it sought a finding of and punishment for contempt, was not further pursued and that no such finding nor order was made, must be considered in the context that this position was only reached on 24 January 2020 and in conjunction with the order then made, by agreement, stating in the respondents’ favour, their compliance with the enforcement order made on 30 July 2018;[13] and
  1. (d)
    Whilst, given the early undertaking provided by the respondents to not sell or transfer the Property until released from that undertaking by the Court,[14] there became no necessity for the relief sought in the nature of restraint from doing so, the applicant is able to point to evidence of the advertisement of the Property for sale,[15] as a basis for such inclusion in the application.  And the respondents’ reference to the effect of s 180(9) and (10) of the PA is not sufficient to point to any inappropriateness or lack of prospective utility in seeking any such order.  It may be noted that those statutory provisions are not directed at the position of any person, prior to the making of an enforcement order and accordingly, would not avoid the prospect of complication of the proceedings by the introduction of a purchaser without notice of them.  Also, the early resolution of this position, in favour of the applicant, does not appear to have otherwise complicated the progress of the proceedings.
  1. [12]
    What relevantly remains is the substantial success of the applicant in obtaining an enforcement order, notwithstanding that it was largely not contested, save for the necessity for the applicant to identify, from the filed material, the basis for the necessary findings in respect of a development offence and to obtain an exercise of discretion, pursuant to s 180(3) of the PA.  However, in each respect, the fact remains that the applicant was successful in so obtaining the enforcement order and ultimately the enforcement of complete compliance with the remediation of the Property, as was specifically required by the earlier order of the court.  There is no sufficient basis demonstrated for any conclusion that any substantial time and expense in the proceedings was directed at any unjustified or unnecessary considerations or that there is any aspect of the proceeding which should be regarded as relevantly unrelated or unconnected to the application for and granting of the enforcement order.
  1. [13]
    It is then necessary to return to the references of the respondents to their attempts to resolve the proceeding. It is unnecessary to traverse the details of the relevant correspondence. As is correctly contended by the applicant, the essential difficulty is that there is no identification, by the respondents, of any basis for concluding that “the result that was ultimately achieved was one that they were openly prepared to agree to prior to the matter coming before the court”, or that there was any unreasonableness on the part of the applicant in bringing the matter to court. Rather and in any event, the making of the enforcement order on 30 July 2018, required an exercise of the discretion of the Court, in respect of which, the respondent was required to satisfy the Court without any concession as to the basis for making such an order. In particular, the respondent left it necessary for the applicant to satisfy the court as to the foundational development offence. Otherwise, it may be accepted, as the applicant contends, that the history of the conduct of the respondents in respect of their compliance with the order made on 18 November 2016 and in connection with the attempts of the applicant to have such compliance, prior to the bringing of this application and in the conduct of the proceedings,[16]  sufficed to warrant its doing so and in obtaining the enforcement order, with the unresolved concomitant prospect of further orders in order to ultimately achieve that compliance. 
  1. [14]
    Therefore, it is appropriate that there be an order that the respondents pay the applicant’s costs of this application and to make provision, in the absence of agreement and pursuant to s 62(2) of the PECA, for assessment under the appropriate procedure and scale of costs for proceedings in the District Court.

Investigatory Costs

  1. [15]
    The final issues relate to the additional claim for investigatory costs. For a “P&E Court proceeding” of this type, being an “enforcement proceeding”, s 58 of the PECA provides that the “costs” which may be awarded:

“…. include a party’s costs to investigate, or gather evidence for, the proceeding that the P&E Court decides the party reasonably incurred”.

It is to be noted that the inclusion is as to “costs to investigate, or gather evidence for, the proceeding” and that it is for this Court to decide whether such costs were “reasonably incurred”, which may also beg any question as to whether the claim is for costs of the contemplated kind.

  1. [16]
    The applicant claims and maintains that a total of $4,104.05 was so reasonably incurred. Those costs are calculated to represent the time spent by the two council officers, who provided the supporting affidavits for the originating application, and on the basis of applying a rate of $87.32, for each officer, for a total of 47 hours. That calculation is further particularised:
  1. (a)
    As at 18 April 2018, as being, respectively, 13 and 14 hours for each of the officers, relating to activity variously described as “site visits”, “reporting and documents” and “legal meetings”; and
  1. (b)
    Subsequently and as to a further 20 hours, in respect of five inspections, each of two hours duration (including travelling time), involving both officers, on 20 September 2018, 30 May 2019, 31 July 2019, 24 October 2019 and 3 December 2019.
  1. [17]
    For the respondents, there is no discreet contention that the claimed costs were not reasonably incurred. Rather, the contention is that:

“Council cannot recover costs of its officers’ time associated with:

  1. monitoring compliance with the consent order;
  2. monitoring compliance with the enforcement order; or
  3. “legal meetings”

because they are not costs incurred to investigate or gather evidence for the enforcement proceeding.” [17]

It is elaborated that:

  1. (a)
    only one of five inspections conducted by one of the officers prior to 18 April 2018, should be allowed, having regard to the facts that such inspections were referred to as being done in order to assess work required by and to achieve compliance with the original order and as specifically allowed pursuant to that order, as made on 18 November 2016, and which occurred prior to the applicant’s decision, in or about January 2018, to commence these proceedings;
  1. (b)
    the same four inspections relating to the accompanying officer should not be allowed, for the same reasons; and
  1. (c)
    “attendances by council officers to monitor compliance with the enforcement order cannot be characterised as investigation costs”.[18]
  1. [18]
    The first point to observe is that the entitling provision in s 58, is expressed in terms of “costs to investigate, or gather evidence for, the proceeding” and there appears to be no implication of any temporal limitation, provided that the costs were so incurred in relation to or “for the proceeding”. Ordinarily some investigatory and evidence gathering costs may be expected to be incurred before any decision is made to take action and commence a proceeding but it does not necessarily follow that such costs may not also be subsequently incurred. And as to the last of the respondents’ points and quite apart from any carryover of the inappropriately narrow approach generally adopted in seeking to divide the matter into effectively separate proceedings, it may be discerned that the inspections which were conducted to monitor compliance with the enforcement order made on 30 July 2018, were for the ongoing purposes of the proceeding which remained before the Court. This was so, notwithstanding that it was not an interim enforcement order that had been made. And in any event, those inspections were directly related to the enforcement order, not just in the sense of being provided for in that order but also in enabling the order pursuant to s 180(11) of the PA, for the benefit of the respondents, on 24 January 2020, in conjunction with the final resolution of the proceeding before the Court. In these circumstances, such costs may be seen to fall within the breadth of the requirement that they be “costs to investigate, or gather evidence for,” such an enforcement proceeding.
  1. [19]
    Although it is the same question which also arises in relation to the earlier site inspections, the relevant circumstances are different. The order which was made on 18 November 2016 (by consent) was in respect of the respondents’ appeal against an enforcement notice issued by the applicant.[19]  Apart from providing, in paragraph 1, for the cessation of operational works in the nature of movement of material in clearing of vegetation and for specified reinstatement or remediation of the Property, the site inspections were authorised by the following clause:

“(k) the appellants must allow Council’s landscape officer to enter the property to inspect the revegetation work at the completion of the revegetation and after three months and after twelve months, and comply with the requirements of the officer (acting reasonably) to ensure that the revegetation requirements are complied with.”[20]

Otherwise and by paragraph 2, the order was to the effect that the appeal was dismissed. 

  1. [20]
    Whilst it may be correct, as the respondents do, to describe those inspections as being “associated with monitoring compliance with the consent order”, that does not necessarily deny any capacity of them to be properly regarded as also being inspections “to investigate, or gather evidence for,” this enforcement proceeding. Notably in the context of the finality of the earlier proceeding, upon the making of the order on 18 November 2016, the provision of ability for compliance inspection could only, in the event of lack of compliance, be expected to be reflected in a further proceeding of the kind that has now been brought. There is therefore no reason not to regard the costs related to these inspections as being within the ambit of “costs to investigate, or gather evidence for,” this proceeding.
  1. [21]
    However the same conclusion may not be reached in respect of those costs which are identified as representing the time spent by the council officers “for legal meetings”. No further description or information as to what is encompassed in such description is to be found in the material. And in the written reply to the objection raised in the respondents’ submission, it is, in effect, simply and boldly asserted that “[t]he work identified [in such description] can properly be described as investigation costs”. The difficulty is in the generality of the description and the absence of any further information as to precisely when, how and for what purpose any such meetings occurred. In the circumstances, the objection having been raised, it is not possible to find that any such meetings were “to investigate or gather evidence for,” this proceeding. The applicant’s claim will therefore be reduced by six hours and be calculated at 41 hours at $87.32 per hour, a total of $3,580.12.

Orders

  1. [22]
    Accordingly, the appropriate further order is that:

The respondents are to pay the applicant’s costs of the proceeding:

  1. (a)
    As to costs to investigate, or gather evidence for, the proceeding, in the amount of $3,580.12; and
  1. (b)
    Otherwise, as agreed or to be assessed on the standard basis pursuant to Chapter 17A of the Uniform Civil Procedure Rules 1999.

Footnotes

[1]  [2018] QPEC 59 at [7]-[8]. 

[2]  Applicant’s submissions on costs filed 3 February 2020, at [5].

[3]  Section 3 of the PECA provides that “[t]he dictionary in Schedule 1 defines words used in this Act”.

[4]  See schedule 1, which appears to be for the use of such terminology in the heading to Part 5 of the PECA and more specifically, the application of division 2 of that part: see s 48(a).

[5]  The Dictionary in Sch 1 also provides the definition of “Planning Act” as “the Planning Act 2016”.

[6]   As may be obtained pursuant to s 180 of the Planning Act 2016. See also the definition of “enforcement order” in Schedule 2 of the Planning Act 2016.

[7] Noting that as the definition of “costs” in s 58 confirms that “an enforcement proceeding” is to be considered a type of “P&E Court proceeding”.

[8] Which in addition to an enforcement order, were directed at the powers of the Court pursuant to the declaratory jurisdiction provided in s 11 of the PECA (including such incidental orders as may be permitted by s 11(4)) and s 36 of the PECA in respect of contempt (with reference also to s 37).

[9]  As made on 18 November 2016; see: Ex 3 to the affidavit of TA Kemp, filed 22/3/18.

[10]  Applicants reply submissions on costs filed 8 April 2020, at [4].

[11]  [2018] QPEC 59. 

[12]Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor [2018] QPEC 59, at [11] and [21]. 

[13]  As permitted by s 180(11) of the PA.

[14]  Which was provided on the first return of the originating application, on 20/4/18, and released by order of the court made on 24/1/2020.

[15]  Affidavit of Troy Andrew Kemp, sworn on 20/3/2018, at paragraphs [37] and [40].

[16]  The relevant circumstances are addressed in the applicant’s submissions on costs filed 3 February 2020, at [18]-[36].

[17]  See respondents submissions on costs filed 10/3/20, at [116].

[18]     Ibid at [123].

[19]  Although it may be noted that “an enforcement notice appeal” (separately defined to mean “an appeal against the giving of an enforcement notice under the Planning Act”) is also identified as a type of  P&E Court proceeding to which the inclusion of “costs to investigate, or gather evidence for, the proceeding”, applies, this would appear to be only for operation of s 60 of the PECA and therefore dependent upon engagement of any one or more of the specified circumstances set out in s 60(1).

[20]  See Exhibit 3 to the Affidavit of T A Kemp, filed 22/3/18.

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v David McKenna and Cheryl McKenna

  • Shortened Case Name:

    Sunshine Coast Regional Council v McKenna

  • MNC:

    [2020] QPEC 22

  • Court:

    QPEC

  • Judge(s):

    Long DCJ

  • Date:

    15 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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