Stankovic v Brisbane City Council (No 2)
[2015] QPEC 27
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- Unreported Judgment
- Stankovic v Brisbane City Council (No 2)[2015] QPEC 27
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Stankovic v Brisbane City Council (No 2)[2015] QPEC 27
Stankovic v Brisbane City Council (No 2)[2015] QPEC 27
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Stankovic v Brisbane City Council (No 2) [2015] QPEC 27 |
PARTIES: | DUSAN STANKOVIC (appellant/applicant) v BRISBANE CITY COUNCIL (respondent/applicant) |
FILE NO/S: | BD934/14 |
DIVISION: | Planning and Environment |
PROCEEDING: | Hearing of an application |
ORIGINATING COURT: | Planning and Environment Court of Queensland at Brisbane |
DELIVERED ON: | 1 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers closing 16 June 2015 |
JUDGE: | R S Jones DCJ |
ORDER: | 1. The appellant is to pay 85 percent of the respondent’s costs of the appeal. 2. The appellant’s application for costs is dismissed. |
CATCHWORDS: | APPLICATION FOR COSTS – where appellant/applicant and respondent/applicant both made an application for costs in respect of a proceeding dealt with by me on 30 April 2015 – where substantive proceeding concerned with an appeal against certain conditions imposed by the respondent Council – where appellant almost wholly unsuccessful – where appellant maintained his position notwithstanding material compromises by his expert witness – where material aspects of appellant’s evidence unsatisfactory – where unlawful works of appellant caused nuisance to adjoining land Sustainable Planning Act 2009 Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) [2014] QPEC 60 Cox & Ors v Brisbane City Council & Anor (No 2) [2013] QPEC 78 YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 2) [2014] QPEC 43 Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2014] QPEC 55 |
APPEARANCES: | Dealt with on the papers |
- [1]This proceeding was concerned with applications for costs by both the appellant and the respondent. For the reasons set out below, the orders of the court are:
- The appellant is to pay 85 percent of the respondent’s costs of the appeal.
- The appellant’s application for costs is dismissed.
Background
- [2]On 22 January 2007 the appellant made an application for a development permit for a material change of use of premises for a house, swimming pool and tennis court. On 20 March 2007 the respondent requested further details of the proposed works and raised a number of issues, in particular, concerns about floodwater conveyance over the subject land.[1]
- [3]Of particular significance in the substantive proceeding was the fact that the subject land lay within a designated waterway corridor for the purposes of the City Plan 2000 and City Plan 2014. The respondent’s primary concern was that the appellant had carried out unauthorised filling within the waterway corridor which in turn was causing ponding and the backing up of water into neighbouring properties. The appellant himself and through his agents made numerous representations to the effect that no fill had been placed within the waterway corridor. Those assertions were clearly untrue.[2] The expert evidence and the evidence of the appellant’s neighbour to the immediate east made it abundantly clear that the appellant had placed fill in the waterway corridor which prevented the natural flow of water across the subject land in a generally north-westerly direction.
- [4]On 27 November 2012, the respondent issued an Enforcement Notice to the appellant maintaining that material had been unlawfully deposited within the waterway corridor and, in reliance on s 578 of the Sustainable Planning Act 2009 (“SPA”), required the removal of fill deposited beyond the footprints of the appellant’s house and tennis court. The house was located on the more elevated part of the subject land fronting Beelarong Street and the tennis court was located towards the north-western corner of the subject land. Thereafter, certain discussions took place between the appellant and the respondent and the matter went before the Building and Development Dispute Resolution Committees which, on 31 July 2013, dismissed the appellant’s appeal primarily on the basis that it did not have the jurisdiction to decide an appeal about an Enforcement Notice issued in respect of operational works. Following that decision by the committee, on 18 March 2014 the appellant filed a notice of appeal in this court. The grounds of appeal were:
- Site work carried out during construction do (sic) not adversely impact on the area;
- The removal of material around existing structures to re-establish natural ground (sic);
- The material used for earthworks does not fall into the category “assessable filling”.
- [5]While it was not clearly stated in the grounds of appeal, the development conditions directly in issue were:
“10 Waterways Corridor
No material of any description to be deposited within the area of the Waterway Corridor.
17 Ponding of stormwater
Adjoining properties and roads are to be protected from ponding or nuisance from stormwater as a result of the works.”
In circumstances where, at no material time did the respondent require the removal of fill reasonably associated with the building platforms for the house and tennis court, grounds 2 and 3 of the notice of appeal were accepted as being redundant by both the appellant and the respondent.[3] Three substantive issues were left to be decided on the hearing of the appeal:
- Had the appellant carried out filling on the subject land in breach of the development conditions and relevant provisions of the City Plan 2000 and City Plan 2014?
- Did those works cause ponding which impacted on neighbouring properties?
- If the answers to the first two questions were in the affirmative, whether the remedial works proposed by Mr Collins, the hydraulic engineer retained by the respondent, were reasonably necessary to rectify the problems caused by the introduction of the fill.
- [6]The appellant, while a self represented litigant, was clearly an educated man being a structural engineer.[4] However, it was also clear that he was at a further disadvantage, with English not being his first language.
- [7]As mentioned above, the expert evidence of Mr Collins for the respondent and Mr Rodgers for the appellant, and the evidence by the neighbour Mr Scrogings made it abundantly clear that the answers to the first two questions were “yes”. In respect of the third question Mr Collins’ evidence was that to satisfy development conditions 10 and 17 and the City Plans 2000 and 2014 the following works would have to be undertaken:[5]
- The cut of approximately 200 mm over an area of the subject land to the east and north of the existing tennis court.
- The construction of a grassed drainage channel along the eastern and northern boundaries of the subject land.
- The introduction of a 225 mm pipe (or two pipes providing similar flow characteristics) under the northern section of the access easement along the eastern boundary of the subject property.
- The removal of 150 mm from the surface of the access easement over a significant portion of its length.
- [8]Mr Rodgers, the hydraulic engineer called by the appellant, was not given the opportunity to comment on the need for the lowering of the surface level of the access easement. However, he otherwise accepted that works of the type proposed by Mr Collins were appropriate. After being taken through certain paragraphs of the joint experts’ report he was asked by Mr Trotter, counsel for the respondent:
“So you’re not in any doubt that works of the kind, that is, of the principle, of the kind, of the direction [sic] proposed by Mr Collins are necessary?
Answer: ‘I agree. Yes. That’s right.’”[6]
- [9]At the conclusion of evidence and closing submissions I made the following findings and orders:[7]
“1. The appeal insofar as it is concerned with the removal of fill material associated with the residence and tennis court as constructed (grounds 2 and 3) ought be allowed.
- The appellant had introduced fill onto his land in breach of conditions 10 and 17 of the appellant’s development approval and was otherwise in conflict with provisions of City Plan 2000 and City Plan 2014.
- The introduction of the fill has interfered with local drainage and overland flows causing water diversion and ponding on neighbouring land.
- Save for the removal of the surface of part of the access easement, remedial works of the type contended for by Mr Collins are both necessary and reasonable.
- The appeal against the imposition of appropriate conditions addressing the ponding issues identified by Mr Collins ought be dismissed.
Accordingly the orders of the court are:
- The appeal is allowed subject to the appellant being required to comply with the conditions package of the respondent dated 15 December 2014 as modified by the drainage relief works identified in Exhibit 17 of these proceedings save for the requirement to lower the surface level of the access easement...” (Footnotes omitted).
- [10]At first blush it might appear by reference to the orders made that the appellant had a significant degree of success. That was not in fact the case. At no relevant time had the respondent required the removal of fill reasonably associated with the construction of the house and the tennis court and the appellant was aware of that well before the substantive proceedings commenced. That I was not prepared to make orders concerning the removal of a part of the surface area of the access easement was because Mr Collins himself conceded that further survey work would be required to confirm the need for such works.
- [11]At one stage during the course of the hearing of the appeal the appellant himself seemed to concede that some remedial work might be necessary but it would have been very limited and nothing like that identified as being required by the expert witnesses.[8] But for the success concerning the removal of a surface area of the access easement the appellant’s appeal in substance failed. The evidence concerning the access easement was extremely limited and had little impact on the conduct and length of the substantive proceeding.
- [12]The appellant’s conduct during the course of the proceeding was far from satisfactory. In my substantive decision I made the following observations:[9]
“[14] That the appellant introduced material onto the eastern and southern areas of the site is clear. The evidence of Mr Collins, Mr Rodgers, the hydraulic engineer called on behalf of the appellant and Mr Scrogings, a neighbour, puts this matter beyond any reasonable dispute. Indeed the appellant himself acknowledged that he had introduced material onto the site. His justification being, at least as I understand it, that the introduction of such material could not be described as an unlawful activity as neither the provisions of the respondent’s planning scheme nor any of the relevant development conditions were offended. Initially the appellant contended that this was so because any material that was introduced to the site was not, according to him, operational works but were works ancillary to the construction of his house and tennis court. According to him it was all simply part of the ‘construction process’.
[15] During cross-examination the appellant, as I understood it, initially maintained that any depositing of material was purely “incidental work” falling within the meaning of building work under the SPA, and therefore would not require a separate development permit. However, as his cross-examination evolved, the appellant resiled from his initial position and instead contended that the real reason for the introduction of the material was to restore his land to its natural or original levels. As best as I could understand the appellant’s evidence on this topic was that between the date he purchased the land in 1995 and the commencement of construction of the house and tennis court, some unidentified persons had taken material from the land creating a borrow pit or pits and stockpiled material on the land causing various depressions. Despite being the owner of the land the appellant was not able to identify who the persons who removed the material were, nor was he able to identify over what period of time those activities took place and where the excavation pit or pits were located and how much material had been removed.
[16] Overall I found the appellant’s evidence unsatisfactory and created more questions than it answered. It struck me that the appellant was prepared to give a version of events which best advanced his case, at least insofar as he thought so, regardless of just how accurate the information being provided was. The material reveals numerous versions of his including the denial of introducing material onto site beyond building platforms through to any material that was introduced was solely for ancillary works and then later for restoration works. I have already referred to the unsatisfactory evidence concerning the alleged excavation works on his site carried out by a person or persons unknown.” (Footnotes omitted).
- [13]In addition to those matters the appellant during the course of his cross-examination of Mr Collins and in his final address made a number of unsubstantiated and unjustified attacks on both the professionalism and creditability of Mr Collins.[10]
The legislation
- [14]Relevant to the applications before me, s 457 of the SPA 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)…
- (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)…
- (f)…
- (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…
…
- (3)Subsection (2) does not limit the matters to which the court may have regard in making an order as to costs.
- (4)…
- (5)If the parties to a proceeding under this part participate in a dispute resolution process under the ADR provisions or the Planning and Environment Court Rules 2010 and the proceeding is not resolved, the costs of the proceeding include the costs of the dispute resolution process.”
- [15]
“The discretion is an open one. It is to be exercised judicially, but without any presumption one way or the other. In particular, while the relative success of the parties is a relevant factor, and might, in a particular case, prove decisive, there is no presumption that costs should ordinarily follow the event…” (Footnotes omitted).
- [16]
“… The predecessor to the current s 457 provided to the effect that each party to a proceeding was to bear its own costs but, in certain circumstances, cost orders could be made. By in large though, that exception depended upon being able to identify some untoward behaviour on the part of one of the litigants including, by way of examples, that the proceedings were brought primarily to delay or obstruct, because there had been failure to comply with court orders and where the party’s case could be fairly described as being frivolous or vexatious.
The philosophy underlying that cost regime has been clearly displaced by the amendments to s 457. The natural and ordinary words used in s 457 as it now stands makes it clear that there is no presumption that costs ought follow the event. However, that said, the discretion given to the court is now a very wide one and while the success of a party is not a determinative factor it is clearly a relevant consideration. And, in litigation of the type involved here, I consider it to be a significant consideration. …”
- [17]The litigation involved in YFG Shopping Centres was an appeal by a commercial entity that owned and controlled shopping centres against the approval of a development of a shopping centre by another commercial entity. That is, it was a commercial competitor appeal. That of course is not the case here.
The opposing contentions
- [18]In summary, the respondent contended for a favourable costs order for the following reasons:
- (i)the conditions of approval for the house and tennis court specifically prohibited the deposition of any fill on the site as it was entirely within a Waterway Corridor (the protection of which is a matter of public interest), and specifically protected neighbouring properties from stormwater ponding.
- (ii)the appellant systematically and methodically went about filling the site for what could be no other reason than to improve his amenity at the expense of his neighbours.
- (iii)During the Enforcement Notice proceedings the appellant falsely denied placement of fill on the site, which had taken place to a very substantial extent and with serious consequences for his neighbours. This appeal was commenced and continued against this background.
- (iv)The appellant conveniently and falsely modified his position for the Committee proceeding, and during the course of this proceeding, to best suit his case.
- (v)It is clear that the appellant used whatever means he could to convey the most favourable (to the appellant) view of the events to Mr Rogers.
- [19]Turning then to the submissions made on behalf of the appellant, he submitted that the following issues were central to the outcome of this application:
“1. The reasons to initiate the appealing process were to rectify unsustainable requests contained in Respondent Decision Notice which rejected Appellant’s post festum Application for (assumed) Operational Works, and get Approval as per arrangement between to parties, i.e. in “As Built” conditions, and with some drainage work as may be required.
2. This submission is Appellant cost application related to the appealing process.
3. Having the appeal allowed along the above mentioned lines, the question is whether the Respondent ought to cover Appellants costs as a consequence of issuing inappropriate Decision Notice which triggered the Appeal.”[14]
- [20]The appellant’s submissions were not without their difficulties but as I understand them the appellant contended that he was the innocent victim of unlawful uses on his land that required restoration by carrying out the introduction of fill. The perpetrators of these unlawful activities were unknown to the appellant. In addition, earthworks were required to replace inferior soils with better ‘sounding’ material. Other accusations were made about his “malicious neighbours”. These assertions lack any probative basis and are rejected.
- [21]The appellant also asserted that the respondent’s conduct concerning this proceeding either lacked “justification and common sense, understanding of basic engineering and construction principles” and/or failed to give sufficient regard to Mr Rogers, his expert witness and, as a consequence, was the cause of “absolutely unnecessary” litigation and left many unanswered questions. For the reasons given above and set out in my reasons disposing of the substantive proceeding, these assertions and allegations must also be rejected.
- [22]Turning then to the appellant’s reply, it largely comprised of new allegations and criticisms concerning the merits of the respondent’s case or repeated those that had already been made. According to the appellant, the respondent’s case was based on manipulation of evidence, inaccuracies, false conclusions and fabrications. The appellant’s reply concluded as follows:
“10. The appellant’s position remains as indicated in previous submission; the appellant was forced into the Court proceedings just because the respondent departed from the settlement agreed upon between two parties in September 2013.
11. This departure was backed by unsustainable request by respondent and in contrary to basic engineering principles, for excavation around the existing foundations with possible catastrophic consequences and compromising overall stability of erected structures and safety of occupants and people in the area.
12. Bearing in mind that the Court decision in principles resolves the dispute along the lines of parties’ previously reached agreement abandoned unilaterally by the respondent, the appellant was successful and the provisions of s 457 SPA are appropriate to be applied for compensation of appellant’s costs.
13. The appellant is clearly the victim of respondent’s unreasonable and unethical behaviour.”
- [23]Again, the assertions and allegations contained in the appellant’s reply lack any foundation and are rejected. Indeed the appellant’s submissions on costs are not only unsubstantiated and unmaintainable but contain numerous assertions and allegations that are scandalous and vexatious. They, unfortunately conform with the unsatisfactory conduct of the appellant addressed in my reasons disposing of the substantive proceeding and set out above.
- [24]Before disposing of the appellant’s submissions on costs I would only add that the fill in issue in the appeal was both well removed and unrelated to any earthworks associated with either the dwelling or the tennis court erected on the land. There was simply no evidence that the earthworks would lead to possible catastrophic consequences or compromise the stability of erected structures. As to the so-called settlement agreed between the parties in September 2013, I was not taken to the details on that agreement, nor was I taken to any evidence that the respondent had breached that agreement. Further, any connection between any breach of the alleged agreement and the subject litigation was not explained. Not surprisingly the respondent denied any breach of agreement as alleged.
- [25]The appellant’s submissions on costs are without merit and, accordingly, his application for costs ought be dismissed.
Conclusions
- [26]While under the new costs provisions, costs do not follow the event, s 457 of SPA reflects a significant change in philosophy regarding costs arising out of appeals such as this. And, success is clearly a relevant factor. This was not a case of unintended unlawful works occurring; it was a deliberate and systematic course of conduct which resulted in a nuisance being caused to neighbouring properties. In that context, issues raised in this proceeding went beyond the personal rights and interests of the parties.
- [27]There is no doubt that the respondent was largely successful in the appeal; the filling associated with the dwelling and tennis court, no longer being in issue. The only success achieved by the appellant was not being required to carry out the excavation works associated with the easement. As already mentioned, that issue occupied little time in the conduct of the appeal and the appellant’s success was, to a significant extent, the result of an unprompted concession on the part of the respondent’s expert, Mr Collins.
- [28]In my view, the respondent, as a responsible public authority, was left with no option but to proceed in the manner that it did. To put it bluntly, the history of this matter reveals a course of conduct on the part of the appellant which made avoidable litigation necessary. Accordingly I consider that the appellant ought to pay a significant proportion of the respondent’s costs in this appeal.
- [29]Given the level of success enjoyed by the respondent, and the limited impact the easement issue had in the overall conduct of this appeal, I consider it appropriate to order the appellant to pay 85 percent of the respondent’s costs.
Orders
- The appellant is to pay 85 percent of the respondent’s costs of the appeal.
- The appellant’s application for costs is dismissed.
Footnotes
[1] 126 Beelarong Street, Morningside, Lot 107 on RP12846.
[2] Stankovic v Brisbane City Council [2015] QPEC 17 (‘Stankovic’) at [4] to [9].
[3] Transcript (T) 3-56, L 1-47 and T3-57, L 14-38.
[4] T3-8 L29-30.
[5] Stankovic at [22] and Exhibits 17 and 20.
[6] T1-81, L 1-3.
[7] Stankovic at [29] and [30].
[8] T3-9 L 23 – T3-10 L 18.
[9] Stankovic at [14], [15] and [16]: also refer to paragraphs [4] to [9].
[10] Stankovic at [23].
[11] [2014] QPEC 55 at [4].
[12] [2013] QPEC 78 at [2].
[13] [2014] QPEC 43 at [15], [16], [17]: also Hydrox Nominees Pty Ltd v Noosa Shire Council. (No 2) 2014 QPEC 60 at [3].
[14] Submissions on behalf of the appellant.