Lipoma Pty Ltd v Minister for State Development
[2016] QPEC 20
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- Unreported Judgment
- Lipoma Pty Ltd v Minister for State Development[2016] QPEC 20
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Lipoma Pty Ltd v Minister for State Development[2016] QPEC 20
Lipoma Pty Ltd v Minister for State Development[2016] QPEC 20
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Lipoma Pty Ltd v Minister for State Development & Anor [2016] QPEC 20 |
PARTIES: | LIPOMA PTY LTD (appellant/respondent) v MINISTER FOR STATE DEVELOPMENT (respondent) And IPSWICH CITY COUNCIL (applicant/co-respondent) |
FILE NO/S: | 4967 of 2015 |
DIVISION: | Planning & environment |
PROCEEDING: | Application for costs |
ORIGINATING COURT: | Planning & Environment Court of Queensland, Brisbane |
DELIVERED ON: | 15 April 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Application heard on the papers |
JUDGE: | RS Jones DCJ |
ORDER: |
|
CATCHWORDS: | COSTS – where co-respondent sought to be joined as a party to the appeal – where orders were made by consent that the co-respondent be joined as a party – whether the co-respondent entitled to the costs of the application to be joined Integrated Planning Act 1997 Sustainable Planning Act 2009 Uniform Civil Procedure Rules 1999 Cox v Brisbane City Council (No. 2) [2014] QPELR 92 YFG Shopping Centres Pty Ltd v Brisbane City Council (No. 2) [2015] QPELR 8 Nadic Investments Pty Ltd v Townsville City Council & Anor [2015] QPEC 48 |
- [1]This proceeding is concerned with an application for costs. For the reasons set out below the orders of the Court are:
- The appellant is to pay the co-respondent’s costs of its application to be joined as a party including its reserved costs of 19 February 2016.
Background
- [2]By letter dated 2 July 2004, the then Minister for State Development and Innovation approved, subject to a number of conditions, extensive development which has been referred to as the “Riverlink approval”. The original development application was the subject of a “Ministerial Call In” pursuant to the Integrated Planning Act 1997.
- [3]The proposed development includes a number of areas/precincts including a Mixed Use Urban Village sub-area, museum and education and business sub-areas, and a commercial village precinct which would include, among other things, a major shopping centre. The proposed development also includes extensive earthworks and is to provide for pedestrian and vehicular connectivity. The latter includes a bridge for rail transport.
- [4]Under the heading “Urban Design/Landscape Masterplan” Condition 5(a)(ii) provided:
“(a) the Developer shall prepare a detailed Urban Design and Landscape Masterplan and amended proposal plan in accordance with Sections 2 and 3 of the Riverlink Preliminary Approval Plan and the relevant Landscaping Condition that addresses the following:
(i) …
- (ii)Riverlink/CBD Connections Sub-Area by protecting the visual and physical interconnectivity/access between the Arts Precinct, the Commercial Village Precinct and other Sub-Areas as outlined in the Preliminary Approval. In particular, this interconnectivity should address the fundamental link between the Commercial Village Precinct and the CBD Arts Precinct that encapsulates the two into the Riverlink/CBD Connections Sub-Area and responds to Sections 2 and 3 of the Riverlink Preliminary Approval Plan and that is generally depicted in… In order to achieve this requirement, the Developer shall pay, prior to the issue of a Development Permit for Building Works, the following contributions to the Ipswich City Council:
- …
- $1,500,000 – towards the acquisition and remediation by Ipswich Council of Lot 1… The contribution shall cover all rights to use land and airspace above the site;
- Up to $500,000 – towards the cost of securing a lease in strata over the Ellenborough Street and Bremer Street road reserves…
The contributions above shall be applicable for a period of 12 months from the date of the development approval, and thereafter shall be reviewed by Ipswich City Council prior to payment being made.”
- [5]On or about 3 October 2005, the appellant provided to the co-respondent amended plans concerning the Commercial Village Precinct. On 7 October 2005, the co-respondent replied and advised the appellant that the amended plans were approved subject to further conditions.[1] Relevant to this proceeding was a condition that:
“In respect to Condition 5(a)(ii) of the Development Permit for the Commercial Village, the payment of the contribution towards the acquisition and remediation of Lot 1 on RP212242 by Council and the contribution towards the cost of securing a lease in strata over the Ellenborough Street and Bremer Street road reserves adjacent to… is to be secured by Bank Guarantee to the value of $3,000,000 prior to the issue of a Development Permit for Building Works. The contribution amount is to be paid to Council when the actual cost of acquisition and remediation are determined by Council prior to the issue of a Development Permit for Building Works other than for piling works associated with the foundations and retaining walls, or such longer period as determined by Council depending on when the action cost of acquisition and remediation are determined by Council.”
- [6]Pursuant to that condition, on a date unknown, the appellant provided a bank guarantee in favour of the co-respondent in the amount of $3,000,000. That bank guarantee is still being held by the co-respondent.
- [7]On 24 September 2015, the appellant lodged a request to change the Riverlink Approval which, among other things, sought the deletion of “the parts of condition 5(a)(ii) of the Riverlink Approval relating to the Commercial Village Precinct that require the QR Land Contribution and the extended Arts Precinct Contribution”. The appellant also sought the return of the bank guarantee.[2] It was contended that the change to the development approval was a permissible change for the purposes of the Sustainable Planning Act 2009.
- [8]By way of a Decision Notice dated 3 December 2015, the respondent refused the permissible change request for the following reasons:[3]
“The requested change does not constitute a permissible change under s 367(1) of SPA for the following reasons:
- The change would result in a substantially different development as, without the financial contributions required by the condition:
(a) the development would not operate as intended;
- (b)an integral component of the original approval would not be achieved, that is: contributing to a fundamental link between the Riverlink development and the CBD; achieving the vision of the Riverlink Preliminary Approval Plan (which has been incorporated into the 2006 Consolidated Ipswich Planning Scheme); and strengthening the role of the Ipswich CBD as a principal regional activity centre;
- (c)new impacts will arise, being the lack of a contribution towards functional connections between the Riverlink development and the CBD…
- The proposed change would, in my opinion, be likely to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed, as:
…” (particulars omitted)
- [9]On 19 January 2016, the appellant filed its appeal against that refusal asserting, among other things, that the change was a permissible change for the purposes of s 367(1) of the Sustainable Planning Act 2009 (“SPA”), that the change would not result in a substantially different development, and that the change would not be likely to cause a person to make a properly made submission. Particulars of each of those assertions were set out in the Notice of Appeal.
- [10]On 19 January 2016 the co-respondent filed its Application In Pending Proceeding seeking to be joined as a party. The grounds relied on were particularised as:
“It is appropriate that the Applicant be joined as a Respondent to the proceedings pursuant to r 69 of the Uniform Civil Procedure Rules 1999… as its presence before the Court would be desirable, just and convenient to enable the Court to adjudicate effectually and completely on the orders sought by the Appellant.”
- [11]The joinder application was opposed by the appellant. On 19 February 2016 His Honour Judge Rackemann ordered that the application be set down for a half day hearing on 21 March 2016. Other orders concerning the filing and serving of material were also made. Pursuant to the orders made by His Honour, on 11 March 2016 the appellant filed its written submissions settled by Mr D Gore QC and Mr M Williamson of counsel and on 16 March 2016 the co-respondent filed its submissions settled by Mr S Keim SC. On 19 February 2016 Judge Rackemann DCJ also ordered that the co-respondents costs be reserved.
- [12]On the morning of the date set for the hearing of the application, the parties advised me that the joinder dispute had been resolved and consent orders were made which saw the co-respondent being joined as a party to the appeal and that the appeal be listed for review on 22 April 2016. An application for costs was made on behalf of the co-respondent and I ordered that any submissions as to costs were to be delivered by the co-respondent by 1 April 2016 and that any submissions in reply on behalf of the appellant were to be delivered by 8 April 2016.
- [13]As I understand it, the position of the respondent was that, in respect of the joinder application it would abide the orders of the Court but otherwise did not intend to be an active participant in the dispute. The respondent does not seek any orders as to costs and no party has sought costs orders against it.
The submissions on costs
- [14]Section 457 of 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 interest of the parties in the proceeding;
- (c)…
- (d)whether a party commenced or participated in the proceeding without reasonable prospects of success…”
- [15]On behalf of the co-respondent it was submitted that it is of significance that the appellant is a commercial developer and that it could be reasonably inferred that it opposed the joinder application in the furtherance of its own commercial advantage. And, further, that when looked at objectively its opposition to the application had no reasonable prospects of success and further, in that regard, the co-respondent had been wholly successful in its application. Or, to put it another way, the appellant had been wholly unsuccessful in opposing it.
- [16]
“The issue of joinder of Ipswich involved a public interest in Ipswich as the assessment manager being joined. There was no public interest (which would militate against an order for costs) in the appellant’s opposition to that joinder.
The inclusion of the contentions of Ipswich concerning its being the assessment manager and its contention that it was and should have been recognised as the responsible entity in the correspondence exhibited to the affidavit of Mr Adams indicates no lack of disclosure or unreasonableness on the part of Ipswich.
There is no correspondence from the appellant to the effect that they were disposed to oppose joinder (for reasons set out in the correspondence) but seeking information as to the basis of the application for joinder. This was a situation where, until counsel for Ipswich demanded in open court that the appellant put forward some basis why the matter needed to be adjourned to a half day hearing, the appellant expressed no basis for its opposition. Even then, the reference to s 482(1)(d) of SPA was nonspecific and veiled.”
- [17]The co-respondent seeks orders to recover the following costs on a standard basis:
- (a)The cost of counsel appearing and instructing solicitors attending on the call over on 19 February 2016;
- (b)Costs associated with considering the appellant’s submission dated 11 March 2016 and preparing the Ipswich submissions of 16 March 2016;
- (c)All subsequent costs associated with the joinder application which was to be heard on 21 March, including the costs associated with making the orders by consent on that day; and
- (d)The cost of this application for costs.
- [18]On behalf of the appellant it was submitted to the effect that none of the matters agitated on behalf of the co-respondent warranted a favourable costs order and that the appropriate order ought be that each party bear its own costs. In addition to criticising the matters advanced by the co-respondent the appellant raised four specific matters that it relied on to support its original opposition to the co-respondent being joined as a party. First: that the co-respondent was “not entitled to be a party to this proceeding let alone receive notice of it”, and that the joining of the co-respondent was an “indulgence” on the part of the Court. This submission largely centred around the proposition that the legislature should be taken to have made a deliberate decision to exclude, from proceedings such as this, local governments.[5] I cannot accept that submission. Had the legislature intended that outcome it would have been reasonably straightforward to state that in the SPA. While it can be said that the co-respondent did not have an automatic right to be a party in the proceeding, the SPA does not, either expressly or by necessary implication, attempt to exclude local governments becoming a party to proceedings in appropriate circumstances. Indeed, this is an example of that.
- [19]The second matter raised by the appellant was that it was entitled to initially oppose the application in circumstances where the addition of another party would be likely to increase the cost and time associated with the appeal. The third matter is essentially a more detailed expression of the position stated in the second. This submission centred around an alleged failure on the part of the co-respondent to identify the reasons for being joined and did not identify “any specific basis for the application”.[6] The application and supporting material was described as being “scattergun” in nature and “obtuse”.[7] In this regard it was submitted that the co-respondent’s material “did not identify its interest in the proceeding other than to confirm what had already been well known by the Minister and the appellant, namely, the council was the original assessment manager and had given advice to the Minister in the assessment of the permissible change request”.[8]
- [20]It is true that the application itself does not reveal any reasons or basis for joinder however, reference is expressly made to the affidavit of Mr Adams who is the city planner of the Ipswich City Council. Mr Adams’ affidavit made it abundantly clear that the co-respondent was concerned with ensuring that appropriate planning outcomes were achieved, including, in particular, that connectivity to and through the CBD was established. It was also made tolerably clear that it intended to resist the surrender of the bank guarantee.[9] In this regard, the affidavit of Mr Adams and the Exhibits attached thereto must have made that sufficiently clear to the appellant to state in its initial written submissions opposing the application that:[10]
“The correspondence identifies that it was the Council’s view that:
- (a)the request to change would, if granted, result in a substantially different development; and
- (b)be likely, to cause a person to make a properly made submission objecting to the proposed change, if circumstances allowed…
These are the very issues in dispute.”
- [21]The fourth and final matter raised by the appellant was that it was not until the co-respondent’s written submissions in support of the application were received that any sensible ground for being joined was revealed. And, once that occurred, on 18 March 2016 the appellants wrote to the co-respondent advising:[11]
“In the submissions for the Council dated 16 March 2016 the Council states the following:
‘Finally, there is claim that the statutory scheme does not encourage the joinder of the applicant because of the terms of s 482(1)(d) SPA. This suggestion lacks cogency for a number of reasons…
- (b)Second, the applicant for joinder contends that it always was the responsible entity for the request for permissible change. If it is correct in this respect, a matter on which it is opposed by both existing parties, then it was entitled to be given written notice of the appeal pursuant to…’
The submissions also makes reference to that issue in other places. This is the first time we can see that the Council has properly articulated that it will be adopting the position that it should have been the responsible entity for the permissible change request for the purposes of this appeal. This matter was not stated in Council’s application for joinder filed on 19 January 2016 nor in the supporting material for that application.
Our client has now considered the matter and given the possible impact that issue may have on the course of the appeal it is now prepared to consent to the joinder of Council to the appeal.” (emphasis added)
- [22]I consider this letter to be somewhat disingenuous and unconvincing. In the appellant’s written outline opposing the joinder, which was filed one week before this letter, it was asserted:[12]
“The Affidavit relied on by the Council proves that it notified the Minister that it opposed the permissible change request and gave reasons for that position (see pages 264-269 of the Affidavit of John Steven Adams)…”
- [23]In the referenced correspondence which was dated 23 October 2015 there are a number of references to the co-respondent being of the opinion that it was the responsible entity for the permissible change request. Indeed at page 2 of that correspondence it was asserted:[13]
“Council is the responsible entity.
Council reiterates its view that the ‘responsible entity’ for s 369 of SPA is not the Minister administering SPA. The ‘responsible entity’ is the assessment manager, which for this request is Council. The reason for Council’s views are set out in Council’s correspondence dated 1 October 2015…”
- [24]The co-respondent’s reasons for wanting to be joined as a party to the appeal including its position that it should have been the responsible entity for the permissible change request were made sufficiently clear from the date the appellant received the affidavit of Mr Adams. That would have occurred some time at or about 19 January 2016.
Consideration and determination
- [25]In the appellant’s written submissions initially opposing the joinder three fundamental propositions were advanced:[14] first, that as the co-respondent did not assert it was a necessary party, the court was therefore “invited to infer that the Council accepts that the outcome of the proceeding does not directly impact upon any of its rights and/or liability such as to warrant being a necessary party”. Second, neither the affidavit material nor the exhibits attached thereto identified why it would be desirable, just and/or convenient for it to be a party in the appeal. Third:
“By joining the Council to the appeal, this would have the effect that the Appellant is obliged to resist two cases against an approval of its request in circumstances where:
- (a)there is already a strong contradictor against the relief sought, namely the Minister whose reasons for refusing the permissible change request are faithful to the position communicated to the Minister by the Council during the assessment process; and
- (b)the statutory scheme does not encourage, or admit of, the opportunity for an entity other than those identified in s 482(1)(d) to be involved in the appeal process and the Council is not one of those identified entities; and
- (c)resisting two cases will not have insignificant cost and time implications for the appellant.”
- [26]It was submitted on behalf of the co-respondent that neither of the first two matters raised by the appellant had any real merit in the circumstances of this case. I agree. As to the third contention made on behalf of the appellant against joinder, while it is true that the addition of a party to any proceeding is likely to have both time and cost implications for the opposing litigant, that of course, while it is a matter that must be borne in mind it is, at the end of the day, largely the inevitable consequence of a party satisfying the Court that it also ought to be a party to the proceeding. It should also be borne in mind in this context that in appropriate circumstances this Court has the power to make orders as to costs favourable to the appellant against the co-respondent and/or the respondent.
- [27]That the co-respondent is not an “identified entity” for the purposes of s 482(1)(d) of SPA is unpersuasive. Finally, again it is but an inevitable consequence of any successful joinder application that the opposing party may be required to have to resist two (or even more) opponents instead of one. Again, though, that is not to the point. As was advanced on behalf of the co-respondent, that the respondent was already a party to the appeal seeking to defend its refusal of the permissible change application ought not prevent the co-respondent from also being involved in the dispute as an appropriate party to the proceeding. As Mr Keim SC pointed out in his original submissions,[15] the co-respondent may wish to raise further issues beyond those raised by the respondent thus far and may wish to add to matters already raised by the respondent.
- [28]It is now well settled that the discretion provided for pursuant to s 457 is a broad one to be exercised judicially but without any presumption that costs ought follow the event or otherwise on the basis that there is some qualified protection against an adverse costs order. Further, while the success of a party is not a determinative factor it is clearly a relevant one and, in some cases, will be a significant consideration.[16]
- [29]The co-respondent is the local government authority primarily responsible for ensuring that development within its local government area is carried out in an efficient and appropriate way having regard to its planning scheme. It would not be unreasonable to infer that that is of particular significance having regard to its Central Business District in which the proposed development is largely to occur. Accordingly, it has a vital interest in not only the final development outcome but also in how that outcome is achieved.
- [30]It is clear from the respondent’s grounds for refusing the permissible change application that the Department considers that the proposed change would result in a substantially different development in that, without the financial contributions required pursuant to condition 5(a) “the development would not operate as intended”. It is also quite apparent that following the permissible change application, the respondent actively sought the co-respondent’s advice in respect of the permissible change application.[17] In this regard on 20 October 2015 the respondent wrote to the co-respondent seeking its advice/information concerning the application. That request was responded to by the co-respondent on 23 October 2015. It can be seen that a number of the matters raised by the co-respondent in that correspondence were taken up in the respondent’s grounds for refusal but not all of them.[18]
- [31]Having regard to the location, size, extent and complexity of the proposed development it is sufficiently clear to me that the co-respondent was clearly a party that ought to be joined in the proceeding. Not to mention that in the event that the appellant were successful the co-respondent would be required to surrender the $3,000,000 bank guarantee intended to secure certain costs associated with the development. Further, the condition being challenged is not a condition imposed by the respondent but is the co-respondent’s “additional” condition imposed on 7 October 2005.[19] It is difficult to conceive then why the co-respondent would not be entitled to defend that condition.
- [32]It is tolerably clear to me that the appellant’s opposition to the joinder application was based on tactical grounds, namely limiting the number of opponents to the permissible change application and not on any “merits” based considerations. To put it bluntly, and this is no way meant to be a criticism, the appellant was primarily acting to achieve, as far as practicable, its most favourable commercial outcomes. It is also tolerably clear that when looked at objectively, the appellant’s opposition was always doomed to fail. The co-respondent’s position, on the other hand, is that of a responsible local government authority seeking to preserve the status quo in respect of a major development in and about its CBD area. For completeness in this regard I would observe that, contrary to the appellant’s position I do not consider the operation of s 457(2)(b) to be limited to only cases involving parties with competing commercial interest.[20]
- [33]For the above reasons it is my view that the appellant must meet some of the co-respondent’s costs associated with the joinder application. I do not however intend to make orders separately dealing with the items particularised by Mr Keim SC. Instead I propose to make orders in the more usual form.
The costs application
- [34]As to the costs of the application for costs I am of the opinion that each side should bear their own costs. The parties agreed to the question of costs being dealt with by written submissions in the consent order made on 21 March 2016. That course of action was entirely unnecessary. On that day, both parties were represented by counsel and instructing solicitors and, the substantive matter being resolved, there was ample time to deal with any costs application. Each party elected to deal with costs in this way and I can see no reason why they should not each bear their own costs of that election.
Orders
- [35]Accordingly, the orders of the Court are:
- The appellant is to pay the co-respondent’s costs of its application to be joined as a party including its reserved costs of 19 February 2016.
Footnotes
[1]Notice of Appeal at paras 4 and 5: Court Document No. 1.
[2]Ibid para 9.
[3]Ibid para 11.
[4]Mr Keim’s SC written submissions at para 27(e), (f) and (g) of.
[5]Mr Williamson’s written submissions at paras 15-17.
[6]Ibid paras 18-21.
[7]Ibid paras 30-34.
[8]Ibid para 22.
[9]See Mr Adams’ affidavit at paras 16-20: Court Document No. 4.
[10]At para 21.
[11]Affidavit of Ms T Gledhill at pp 25-26: Court Document No. 9.
[12]At para 20.
[13]Mr Adams’ Affidavit at pp 264-269: Court Document No. 4.
[14]Court Document No. 6 at paras 17-22.
[15]Outline of the Applicant for Joinder at paras 24 – 25: Court Document No. 7.
[16]Cox v Brisbane City Council (No. 2) [2014] QPELR 92 at [2]-[3]; YFG Shopping Centres Pty Ltd v Brisbane City Council (No. 2) [2015] QPELR 8 at [17] and Nadic Investments Pty Ltd v Townsville City Council & Anor [2015] QPEC 48 at [6].
[17]Affidavit of Mr Adams at para 20: Court Document No. 4.
[18]Ibid at pp 262-269.
[19]Notice of Appeal at paras 4 and 5: Court Document No. 1; see also respondent’s correspondence dated 20/10/2015 at p 2 attached to Affidavit of Mr Adams at pp 263 and 267: Court Document No. 4.
[20]At para 29.