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Gympie Regional Council v Tregoning[2017] QPEC 20

Gympie Regional Council v Tregoning[2017] QPEC 20

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Gympie Regional Council v Tregoning [2017] QPEC 20

PARTIES:

GYMPIE REGIONAL COUNCIL

(applicant)

v

OWEN ROY TREGONING

(respondent)

FILE NO/S:

D109/2016

DIVISION:

Planning and Environment 

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

4 April 2017

DELIVERED AT:

Maroochydore

HEARING DATE:

9 December 2016

JUDGE:

Long SC, DCJ

ORDER:

The respondent is to pay the applicant’s costs of the application filed on 18 August 2016, including investigation costs, as agreed or as assessed on the standard basis pursuant to Chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999 and as if this was an order of the District Court, except:

  1. (a)
    for the costs of appearance in the Court on 23 September 2016; and
  2. (b)
    that after 23 September 2016, that be as to only 50% of such costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – COSTS – Where the applicant filed an application for enforcement orders pursuant to s 604 of the Sustainable Planning Act 2009 in respect of the respondent’s use of land –  Where the primary focus of the application moved from contentions as to the past illegal use of the land and to the issue as to the regularisation of the present and future use of the land by the respondent by establishment of a dwelling house – Where the application was determined by orders made on final terms on 9 December 2016 – Where the applicant made an application for costs of the application for enforcement order, including investigation costs – Whether the respondent acted unreasonably leading up to and in the proceedings – Whether the respondent participated in the proceedings without reasonable prospects of success or on a limited basis – Whether the respondent failed to comply with interim orders made on 30 September 2016 and 4 November 2016 – Whether the applicant is entitled to the effect of costs following the event pursuant to s 457(9) of the Sustainable Planning Act 2009, or are there circumstances such as mixed success on issues as to warrant departure from that rule 

LEGISLATION:

Sustainable Planning Act 2009; ss 7(e); 10(1); 456; 457(1); 457(2)(a); 457(2)(d); 457(6); 457(6)(d); 457(7); 457(15); 578; 578(1); 582; 601; 601(1)(a); 603; 604

Uniform Civil Procedure Rules 1999; 681

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44

Interchase Corporation Ltd (in liq) v Grosvenor Hill Qld Pty Ltd (no 3) [2003] 1 Qd R 26

Latoudis v Casey (1990) 170 CLR 534

Mudie v Gainriver [2002] 2 Qd R 53

Oshlack v Richmond River Council (1998) 193 CLR 72

Paroz v Paroz [2010] QSC 157

Warringah Shire Council v Sedevic (1987) 10 NSWLR 336

SOLICITORS:

Thomsen Geer for the Applicant

Introduction

  1. [1]
    On 18 August 2016, the applicant Council filed an application for enforcement orders pursuant to s 604 of the Sustainable Planning Act 2009 (“SPA”), in respect of the respondent’s use of land situated at 530 Kandanga Imbil Road, Imbil (Lot 3 on RP 197050) (“the land”) and in respect of which he is the registered owner. The land has an area of 12.59 ha and is located in the rural zone under the Gympie Regional Council Planning Scheme 2013 version 1.1 (Planning Scheme 2013).
  1. [2]
    After a difficult and somewhat protracted history and various orders made upon an interim basis and pursuant to s 603 of SPA, the application was determined by orders made on 9 December 2016 and which were intended to have final effect. Although partly made in the form of amendment to an earlier order dated 4 November 2016, particularly by way of an enlargement of the time period allowed for particular actions to be achieved by the respondent and unlike the earlier interim orders made pursuant to s 603 of SPA, this order was made as an order under s 604 of SPA. Accordingly, and upon the allowance of further time for the respondent to:
  1. (a)
    lodge an application for non-sewered residential plumbing approval in respect of the then-existing mobile home demountable on the land; and
  1. (b)
    to submit to Council a building approval from a building certifier for that existing mobile home/demountable;

the following was included in terms of having a self-executing effect:

“3.  In the event the respondent has not complied with either paragraph one or two above:

  1. (a)
    the respondent, including by his invitees, shall immediately cease using the mobile home/demountable home (as depicted in the photograph attached hereto and marked ‘A’) situated on the land for residential purposes by 31 January 2017; and
  1. (b)
    the respondent shall either demolish or remove the mobile home/demountable home from the land by 15 February 2017.”
  1. [3]
    And further, it was then directed that in respect of the application for costs which had been included and made by the applicant, that the respondent was to file and serve any affidavits and an outline of submission in respect of the application for costs on or before 15 January 2017 and the applicant allowed to file any material in response on or before 31 January 2017. It was further directed that in the event that there was no request that any deponent of any affidavit relied upon by the respondent be made available for cross-examination the issue was to be determined on the papers and otherwise relisted for hearing, upon application made to the Registrar.
  1. [4]
    However and before proceeding with the determination of that costs application, it is necessary to note that by further application filed on 13 February 2017 and heard, without objection, whilst I was sitting in Harvey Bay on 15 February 2017, the respondent sought and was granted a further extension of the time allowed for him to submit the building approval to the applicant and in respect of the self-executing effect of the orders, in that he now has until 7 March 2017 to submit the building approval or cease using the mobile home/demountable on the land for residential purposes and until 21 March 2017 to demolish or remove the mobile home/demountable from the land, in the event that the building approval is not so submitted. In short, such variation of the order was allowed, in circumstances:
  1. (a)
    where it was not in contest that the Court was empowered to do so;[1]
  1. (b)
    there was the contextual evidence as to the steps that had been taken by the respondent, particularly after obtaining finance to enable him to do so, on or about 6 December 2016 and including the lodgement of an application for non-sewered residential plumbing approval on 22 December 2016. And that as a consequence of the communication received by him on or about 27 January 2017 (by a letter from the applicant dated 25 January 2017), it was then identified that the plumbing approval could not be given in the absence of a requested further waste water design report and the realisation that then emerged that without the plumbing approval, the private building certifier (otherwise engaged so that the building approval might be obtained and lodged) could not do that before 31 January 2017; and
  1. (c)
    the inappropriateness, particularly as to the difficulty of any remaining and manifest absence of compliance with the orders of the Court, of an alternative proposed by the applicant, being an undertaking as to forbearance in respect of any attempt to enforce or perhaps execute the order by way of further proceedings, by delaying the planned inspection of the property, so as to allow for compliance, in effect, in the meantime. 
  1. [5]
    In the further application, a further order that was sought but not allowed, was in respect of the enlargement of the time for the respondent to file and serve material in respect of the application for costs, except that and in the end, without the objection of the applicant, it was noted that in deciding the application for costs, the court would have regard to the affidavits filed by the respondent in support of his further application, to the extent they were relevant. In that regard, it was noted that although the respondent had acted to engage solicitors, who had then engaged counsel for the hearing of the application on 15 February 2017, he had not done so before 16 January 2017 and therefore not until after the time limited for his filing and service of material. Accordingly, he had not taken advantage of the opportunity made available to him to do so by way of the orders made on 9 December 2016 and it was accepted that the effect of acceding to this aspect of the further application now would inevitably lead to the incurrence of further costs, including as to allowing the applicant an opportunity to respond in due course.
  1. [6]
    In those circumstances, it was further ordered on 15 February 2017 that there be no order as to costs of the further application filed on 13 February 2017, with the effect that the parties were to bear their own costs of that application and the application for costs of the application filed on 18 August 2016, up to and including the making of the order on 9 December 2016, would then be decided on the materials that are presently before the court.
  1. [7]
    The order in respect of that costs application is that:

The respondent is to pay the applicant’s costs of the application filed on 18 August 2016, including investigation costs, as agreed or as assessed on the standard basis pursuant to Chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999 and as if this was an order of the District Court, except:

  1. (a)
    for the costs of appearance in the Court on 23 September 2016; and
  1. (b)
    that after 23 September 2016, that be as to only 50% of such costs.           

And what follow are the reasons for that order.

The Application

  1. [8]
    The applicant seeks an order for its costs of the application for enforcement order, including investigation costs. In doing so it is pointed out that the making of the intended final order on that application on 9 December 2016, occurred on the fifth occasion that the matter had come before the Court. It is further contended that the facts and circumstances would justify such an order on an indemnity basis.[2]
  1. [9]
    The power of the court to award costs is provided in s 457(1) of SPA, as follows:

“457  Costs

  1. (1)
    Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.”

The following subsections provide for some particular matters that may be taken into account in the exercise of the Court’s broad discretion and, in some particular circumstances, fetters or constraints upon that exercise.  In this instance s 457(9) is engaged, with the consequence that, here, the costs are in the discretion of the Court but follow the event, unless the court orders otherwise. Such a provision[3] is not expressed as a fetter or constraint upon the discretion to be exercised but rather provides for a general or ordinary rule or principle in guidance of the exercise of that discretion, except where circumstances may warrant a departure from it.[4]

  1. [10]
    Moreover and just as is recognised in respect of UCPR 681, “the event” is not necessarily limited to the strict final outcome but means the events or issues, if more than one, arising in the proceedings.[5] Such an approach is consistent with the reference in s 457(2)(a) to “the relative success of the parties in the proceeding”, as a matter that may be considered.
  1. [11]
    Otherwise, it may be noted that:
  1. (a)
    pursuant to s 457(6)(d), this being an application of a type mentioned in s 601 of SPA, the costs of the proceeding include investigation costs:

“which include costs the court decides were reasonably incurred by a party to the proceeding relating to investigations or gathering of evidence for the making of the declaration or order, the giving of the enforcement notice or the bringing of the proceeding”;[6] and

  1. (b)
    Section 457(2) provides a non-limiting reference to matters to which the court may have regard, in the exercise of discretion.
  1. [12]
    The applicant points to the outcome, in the sense of the making of the intended final enforcement order and the process involved and submits that there is an absence of reasons or factors to militate against the application of the general or ordinary rule and that it should be entitled to recover all of its costs of the proceeding, including investigation costs. It is further submitted that such an outcome is particularly appropriate having regard to the conduct of the respondent, including that:
  1. (a)
    the respondent has acted unreasonably leading up to the proceeding by not responding to the Council’s written demands prior to the commencement of the proceedings – affidavit of Jeremy Malcolm Marshall sworn 14 September 2016 – thereby necessitating the commencement of proceedings;
  1. (b)
    to the limited extent the respondent has participated in the proceedings, he has participated without reasonable prospects of success (section 457(2)(d)); and
  1. (c)
    there had been failure of compliance with the orders of the Court made on 30 September 2016 and 4 November 2016.[7]
  1. [13]
    Up to and including 9 December 2016, the respondent appeared and sought to deal with these proceedings without legal representation. On 9 December 2016 he opposed any order for costs and in particular, asserted that he was impecunious and in ill-health. He also sought to point to his efforts to resolve the lawful use of his land for residential purposes. In his affidavit, filed on 14 February 2017 and in relation to the further application determined on 15 February 2017, the respondent deposed to the effect that:
  1. (a)
    he was 55 years old, unemployed and in receipt of an invalid pension and living at the subject property with his partner;
  1. (b)
    he suffers from chronic lymphocytic leukaemia and diverticulosis and that his “condition” causes him to be extremely tired all the time, with “difficulty thinking and concentrating on anything”.  An exhibited letter from a medical practitioner confirmed the asserted diagnosis and otherwise noted that:

“His leukaemia is stable and causing no particular symptoms.  He self-treats with herbal treatment.

Owen has certainly experienced stress symptoms since the dispute with Council arose.  These include impaired mental focus, bad dreams, fatigue, reduced motivation, increased smoking, anorexia and weight loss.

He informs me that he struggles to do any physical work as a result of fatigue and inability to concentrate properly on tasks.”

  1. (c)
    he did not read well and had impaired hearing and sight, and that due to him not having “email or a fax machine” he asserted that:

“the majority of the court documentation I received in relation to this matter was handed to me when I attended the courthouse.  I often did not understand what the documents were saying.”

  1. (d)
    although he and his partner had applied for a loan on or about 6 September 2016, and in order to fund what was necessary in respect of regularising their residence on the property (with their pets, including five horses), due to complications in relation to an incorrect credit rating of his partner, that was not approved until 6 December 2016 and then in the amount of $35,600 secured by mortgage on the property.
  1. [14]
    Accordingly, it is necessary to have some regard to the history and progression of the proceedings, on the application made by the Council.

The history of the proceedings

  1. [15]
    The applicant’s investigation of the respondent’s use of the land was prompted by the complaint of a neighbouring resident and as to the negative amenity impacts that were occasioned by that use. That neighbour had lived on an adjoining property since April 2015 and had, from her own observations and interactions with the respondent, discerned that in addition to the respondent and his partner, the respondent’s two adult sons and another adult male also resided on the land. The deleterious impacts on the amenity of the adjoining property “having a major impact on our lives and preventing us from enjoying the quiet rural lifestyle of the area and daily life in our home” was more particularly identified as being:
  1. (a)
    Noise from a generator and also loud music, shouting and barking dogs;
  1. (b)
    Intrusion of car headlights as various vehicles are driven on the property; and
  1. (c)
    The respondent’s practice of conspicuously toileting in the open and near the boundary of the land and leaving waste products in that vicinity.[8]
  1. [16]
    The respondent also relied upon evidence obtained from an inspection of the land by Council officers on 27 November 2015 and pursuant to a warrant granted by a magistrate. As described in the affidavit of Simon James Eager:

“16.  During the inspection, I observed the following structures and things on the land associated with the land being used for habitable/residential purposes:

  1. (a)
    A large blue bus in which the partner of the   respondent, Debbie, stated that she resides;
  1. (b)
    A large white caravan with various tarpaulin and other structures attached in which the respondent advised his stepson ‘Kane’ resides;
  1. (c)
    A structure with corrugated iron walls in which contained a toilet (essentially a bucket with a toilet seat on top) and shower area;
  1. (d)
    A large water tank adjoining the toilets/shower area;
  1. (e)
    A blue and white mini-bus with canvas/tarp type structures attached for shelter in which the respondent stated is occupied by a male named Bob Daley; and
  1. (f)
    A power generator that was operating at the time of the inspection and emitting a significant amount of noise.
  1. I asked the respondent if he had any development approvals to build structures on the land, to which he responded with words to the effect that he did not require approval as the structures were more than 200 metres from the road.
  1. During the inspection I also observed discarded toilet roll on the ground near the boundary with Ms Butler’s property.  I noted the toilet roll was soiled with what appeared to be excrement and I could clearly detect an unpleasant order from where I stood.
  1. I asked the respondent what his toileting arrangements were.  He indicated he went to the toilet ‘over there’, pointing to the ground and ‘everyone else goes over there’ pointing to the structure with corrugated iron walls containing a makeshift toilet and shower”.[9]
  1. [17]
    Particular emphasis was placed on the affidavit of Ms Tanya May Stenholm,[10] a town planner and the Manager Development and Compliance for the applicant, and her assessment of the evidence relied upon and her opinions expressed as to the assessment of the use to which the land had been put against the planning scheme and development offences that may have occurred.  Whilst her evidence may be of assistance to the applicant and to a more limited extent the Court in identifying issues that are related to the questions to be decided, it must be noted that ultimately the interpretation of the planning scheme is a question of law for the Court and the question as to whether any development offence has been established is one of fact for the Court to determine.[11]
  1. [18]
    However and as proof of matters of fact, Ms Stenholm deposes to the respondent’s position as the registered owner of the land “at [7] and TMS-01” and that she had caused searches of Council records to be undertaken to establish that:

“15.1 No building approval for a dwelling house or similar structure has ever been issued in respect of the land; and

15.2 No building approval has ever been issued in respect of the ‘toilet’ structure with corrugated iron sides”.[12]

Otherwise, it may be noted that Ms Stenholm, it appears correctly and appropriately, described the evidence as to an occupation of the land as an encampment at which a number of persons resided on a permanent or semi-permanent basis. 

  1. [19]
    As has been noted above, the evidence establishes that there were three vehicles which were used for or available for such residential purpose located at the site in November 2015. That is:
  1. (a)
    A large blue bus;
  1. (b)
    A white caravan; and
  1. (c)
    A blue and white mini-bus, with attached canvas/tarpaulin-type sheltering structures.

And in addition, there were other rudimentary structures, apparently available for common use, including:

  1. (a)
    A small corrugated iron structure that contained a toilet (albeit essentially a bucket with a toilet seat on top) and shower area; and
  1. (b)
    An apparently related water tank and also a power generator (which was noted as being in operation and emitting significant noise at the time of the inspection on 27 November 2015).
  1. [20]
    Another reason for the limited use to which Ms Stenholm’s evidence may have been put in these proceedings, is that in her assessment as to the use to which the land was, on the evidence being put, as dealt with in the planning scheme, she concluded:

“The closest ‘fit’ would appear to be the following:

‘Rooming Accommodation means premises used for the accommodation of one or more households where each resident:

  • Has a right to occupy one or more rooms;
  • Does not have a right to occupy the whole of the premises in which the rooms are situated;
  • May be provided with separate facilities for private use;
  • May share communal facilities or communal space with one or more of the other residents.

The use may include:

  • Rooms not in the same building on site;
  • Provision of a food or service;
  • On-site management or staff and associated accommodation.

Facilities include furniture and equipment as defined in the Residential Tenancies and Rooming Accommodation Act 2008”.[13]

This is because of what was noted in AAD Design Pty Ltd v Brisbane City Council[14] and as to the inappropriateness of the application of a “best fit test”, in the context of the usual principles of statutory construction which must be applied to a planning scheme.

  1. [21]
    Otherwise, it may be noted that Ms Stenholm concluded that the use would constitute an undefined residential use of the land and on that basis she sought to identify that development offences had been committed pursuant to both s 578 and 582 of the SPA.
  1. [22]
    However and when it first came before the Court on 23 September 2016, the applicant sought to pursue the application on the basis that the contended offence was the contravention of s 578(1) of SPA, by carrying out assessable development on the land without “an effective development permit for the development”. However, the primary difficulty was in respect of service on the respondent and as to whether or not particular solicitors were still acting for him, and the application was adjourned to be heard on 30 September 2016.  Directions were made including as to the notification of that listing to the respondent and for the applicant to file and serve an outline of submissions for the orders that were sought, on or before 28 September 2016.
  1. [23]
    The later direction was necessary, having regard to the considerations that an application of the kind made in this instance is permitted by s 601 of SPA: “for an order to remedy or restrain the commission of a development offence”.  And that such orders may be sought, notwithstanding that the relevant development offence has not been established by separate prosecution but where the existing or future commission of the offence must be established by evidence (and in accordance with the principles discussed in cases such as Briginshaw v Briginshaw).[15] In fact, it may be noted that although not included in the original application, on 30 September 2016 and upon questioning by the Court as to the particular need to establish a development offence, an oral application was made in respect of a declaration as to such an offence being included.  Whether or not it is formally recognised by declaration, it was accepted as necessary that the Court be satisfied, on the evidence, that there is a development offence that requires remedy or restraint.
  1. [24]
    For present purposes, it suffices to note that the applicant’s contention as originally brought to the Court was that what has occurred (albeit commencing at some unknown past point), is “assessable development”[16] of the land because of the evidence as to the use of it evidenced as at November 2015. Further and despite the reliance on s 578, as the contravened offence provision, rather than s 582 of SPA the applicant’s contention was premised upon the use to which the land has been put, on the contention that pursuant to s 7(e) of SPA “development” is established by “making a material change of use of premises” and that by s 10(1) of SPA, “material change of use” is defined to mean:

“(a) the start of a new use of the premises; or

  1. (b)
    the re-establishment on the premises of a use that has been abandoned; or
  1. (c)
    a material increase in the intensity or scale of the use of the premises.”
  1. [25]
    That approach was also premised on an understanding that without being able to stipulate when, the use of the land by or permitted by the respondent and which was the subject of these proceedings, commenced or at least materially increased in intensity or scale, such as to amount to assessable development, as it is contended that it was noted on inspection in November 2015.
  1. [26]
    However it is now unnecessary to fully traverse the multiple steps through the SPA, in tracing the applicant’s contention or the extent to which there was evidence of any ongoing offence of the kind alleged. This is because on 30 September 2016 the respondent appeared and produced materials, which were then marked as Exhibit 1 and which evidenced steps he had embarked upon to establish a form of dwelling house on his land.  He then presented a continued intention to regularise his ongoing use of the land and to satisfy the applicant’s concerns as to his past use of the land.[17]  In those circumstances and after some negotiation, the parties consented to orders to the effect that:
  1. (a)
    the application was adjourned for review on 28 October 2016;
  1. (b)
    a number of interim enforcement orders were made, pursuant to s 603 of SPA and in order to regularise the respondent’s use of the land;[18] and
  1. (c)
    the applicant was given a right on specified notice to enter and inspect the land “to ascertain the respondent’s compliance with the requirements of [the] order”.
  1. [27]
    When the matter came back before the Court, in accordance with the law list published for 28 October 2016, the respondent did not appear. The applicant was given leave to read and file affidavits relating to an inspection of the land, conducted in accordance with the interim orders, on 25 October 2016.[19]  Although those affidavits had not been served on the respondent, due it was said to him not having an email address and his failure to attend at Court, the evidence appeared to relate to matters which would be within the knowledge of the respondent and necessary for consideration of the applicant’s persistence in seeking final enforcement orders, particularly upon the contention of absence of compliance with the interim orders.
  1. [28]
    Accordingly, the further submissions of the applicant were heard on 28 October 2016 and the Court’s decision reserved in respect of the application for the following orders:

“It is declared pursuant to s 456 of the Sustainable Planning Act 2009 (SPA) that:

  1. The respondent has committed a development offence of carrying out assessable development without a permit.

It is ordered pursuant to s 604 of the SPA that:

Cessation of use

  1. The respondent including by his servants, agents, contractors and invitees immediately cease using premises located at 530 Kandanga Imbil Road, Imbil, more particularly described as Lot 3 on RP 197050 (the Land) for the purpose of “Rooming Accommodation” as defined by the Gympie Regional Council Planning Scheme 2013 Version 1.1 (Planning Scheme 2013), or other habitable/residential use unless authorised by an effective development permit.
  2. In the alternative, the respondent, including by his servants, agents, contractors and invitees shall immediately cease using the Land for any habitable/residential purpose other than for the purpose of a “Dwelling house” as defined under the Planning Scheme 2013 unless authorised by an effective development permit or by the Planning Scheme 2013.

Restriction on resuming use

  1. The respondent, including by his servants, agents, contractors, tenants and invitees shall not resume using the Land for the purpose of “Rooming accommodation” as defined by the Planning Scheme 2013, or for any other residential purpose, unless authorised by an effective development permit, or by the Planning Scheme 2013.
  2. The respondent, within 30 days of the date of this order, shall:
  1. (a)
    demolish and/or otherwise remove all unlawful building and plumbing work on the Land including but not limited to the structure with corrugated walls which contains a shower and toilet as identified on the plan attached hereto and marked “A” (“camp shower/commode”);
  1. (b)
    remove all other things from the Land which are used for habitable/residential purposes including but not limited to the white caravan, the white and brown caravan, the red shipping container, mini bus with tarpaulin and similar structures attached and generator;
  1. (c)
    decommission and remove all and any plumbing and drainage work and fittings, whether internal or external to the aforementioned structures or things including but not limited to kitchens, toilets, bathrooms, showers, laundries, urinals and septic tanks;
  1. (d)
    remove all furniture, fittings, fixtures, objects and articles associated with the habitable/residential use of the aforementioned structures or things on the Land including but not limited to white goods, beds and bedding, furnishings, decorations, entertainment equipment such as televisions and stereos, clothing, cooking utensils and cookware, food, drink and other like consumable items;
  1. (e)
    remove all items, articles and things associated with the unlawful habitable/residential use of the land; and
  1. (f)
    remove and lawfully dispose of all rubbish, litter, waste and disused items and the like.

Site remediation and environmental management plan

  1. The respondent, within 60 days of the date of this order, shall engage an appropriately qualified consultant to prepare and submit to the applicant for its approval a site remediation and environmental management plan (SREMP) for the restoration of the Land to the condition it was in prior to the development offences occurring and for the management and remediation of the environmental impacts caused by the development offences including but not limited to the management of any contamination to the Land that has occurred as a result of the development offences.
  2. Upon the applicant notifying its approval of the SREMP the respondent shall cause to be performed the works required by the SREMP within 60 days of that notification, with the said works will be deemed to have been completed upon receipt of certification provided by the applicant certifying that the said works are completed.

Applicant’s right to inspect

  1. The applicant, including its contractors and consultants, be authorised to enter the Land (including with police officers and security personnel) for the purpose of conducting an inspection of the Land and any structure on the Land (including interior areas of any structure) to ascertain the respondent’s compliance with the requirements of this order at any time between 9.00 am and 5.00 pm Monday to Friday without notice.”[20]
  1. [29]
    It is of importance to understand that it had, of course, become clear from 30 September 2016, that quite apart from any contention as to past illegality of the respondent’s use of the land and some delays in respect of his rectification of issues that had been raised by the applicant, the ongoing issue and the basis upon which the interim orders had then been resolved, was the regularisation of the respondent’s efforts towards establishing a form of dwelling house on the land. And it may be noted this order, as proposed on 28 October 2016, was also calculated to allow for the respondent’s proposal and need for the requisite approvals, in order to regularise his development of the land, by establishing a dwelling house on it but with effect to exclude his continued residence on the land before that was achieved. Also and by this point, it had become clear that there was no issue that the development offence purported in this proposed order had been committed and remained unresolved, in the absence of the necessary approvals.
  1. [30]
    In the further context of becoming aware that the respondent had attended at the Maroochydore Courthouse on 28 October 2016, after the matter had been heard, the matter was next listed, on notice to the parties, on 4 November 2016 and when I was otherwise sitting at Gympie. On that occasion and in consequence of further representations by the respondent as to further steps he had undertaken since the property had been last inspected and consistently with the applicant’s position of seeking the lawful regularisation of the respondent’s use of his land rather than preclusion of use of it, a further interim order was made, effectively by consent and in the following terms:

“IT IS ORDERED pursuant to section 603 of the Sustainable Planning Act 2009 (SPA) that:

  1. The following interim enforcement order is made that:
  1. (a) by 4 November 2016 the Respondent must ensure that all persons on the land are residing in the mobile home/demountable on the land; and
  1. (b)
     by 2 December 2016 that mobile home/demountable is serviced by an internal toilet that is operational.
  1. The further interim enforcement order is that by 2 December 2016, the Respondent including by his servants, agents, contactors and invitees must, except in respect of the mobile home/demountable referred to in paragraph 1 of this order:
  1. (a)
     demolish and/or otherwise remove all unlawful buildings on the land including but not limited to the main camp structure which contains a barbeque, fridges and freezers and television attached to the caravan (brown and white) identified as structure 9 on the plan attached hereto and marked “A”.
  1. (b)
     remove all other things from the land which are used for habitable/residential purposes including but not limited to the white caravan and minibus with tarpaulin;
  1. (c)
     decommission and remove all and any plumbing and drainage work and fittings, whether internal or external to the aforementioned structures or things including but not limited to kitchens, toilets, bathrooms, showers, laundries, urinals and septic tanks;
  1. (d)
     remove all furniture, fittings, fixtures, objects and articles associated with the habitable/residential use of the aforementioned structures or things on the land including but not limited to white goods, beds and bedding, furnishings, decorations, entertainment equipment such as televisions and stereos, clothing, cooking utensils and cookware, food, drink and other like consumable items;
  1. (e)
     remove all items, articles and things associated with the unlawful habitable/residential use of the land; and
  1. (f)
     remove and lawfully dispose of all rubbish, litter, waste and disused items and the like.

Building and Plumbing Approvals

  1. The following enforcement orders are that:
  1. (a)
     by 18 November 2016, the Respondent is to lodge an application for non-sewered residential plumbing approval in respect of the existing mobile home/demountable;
  1. (b)
     by 2 December 2016, the Respondent is to submit to Council a building approval from a building certifier for the existing mobile home/demountable;

Applicant’s right to inspect

  1. The Applicant, including its contractors and consultants, be authorised to enter the land (including with police officers and security personnel) for the purpose of conducting an inspection of the land and any structure on the land (including interior areas of any structure) to ascertain the Respondent’s compliance with the requirements of this Order at any time between 9am and 5pm Monday to Friday on not less than 2 hours notice by telephone.
  2. The matter be listed for further review before the Court at Maroochydore on 9 December 2016 at 9.30am.”
  1. [31]
    And in similar vein and when the matter was reviewed again on 9 December 2016 and upon the further representations of respondent that he was continuing to work towards his goal and the expectation of the parties that allowance of some further limited time would allow for final compliance with the orders made on 4 November 2016 and in order to bring the matter to conclusion, the following orders were made, effectively without contest:

“UPON THE COURT BEING SATISFIED THAT a development offence has been committed under section 578 of the Sustainable Planning Act 2009 (SPA) by failing to obtain a development permit for assessable development for building work, namely a mobile home/demountable on land situated at 530 Kandanga Imbil Road, Imbil, more particularly described as Lot 3 on RP 197050 (the Land).

IT IS ORDERED pursuant to section 604 Sustainable Planning Act 2009 (SPA) that:

  1. The date for compliance with paragraph 3(a) of the Order of the Court dated 4 November 2016 be enlarged to 15 January 2017.
  2. The date for compliance with paragraph (3)(b) of the Order of the Court dated 4 November 2016 be enlarged to 31 January 2017.
  3. In the event the Respondent has not complied with either paragraphs 1 or 2 above:
  1. (a)
     the Respondent, including by his invitees, shall immediately cease using the mobile home/demountable home (as depicted in the photograph attached hereto and marked “A”) situated on the land for residential purposes by 31 January 2017; and
  1. (b)
     the Respondent shall either demolish or remove the mobile home/demountable from the land by 15 February 2017.
  1. The date for compliance with paragraphs 2(e) and 2(f) of the Order be extended to 23 December 2016.
  2. The Applicant, including its contractors and consultants, be authorised to enter the Land (including with police officers and security personnel) for the purpose of conducting an inspection of the Land and any structure on the Land (including interior areas of any structure) to ascertain the Respondent’s compliance with the requirements of this Order at any time between 9am and 5pm Monday to Friday without notice.
  3. It is directed that:
  1. (a)
     on or before 15 January 2017, the Respondent file and serve any affidavits and an outline of submissions in respect of the application for costs;
  1. (b)
     on or before 31 January 2017, the Applicant is to file and serve any material in response;
  1. (c)
     in the event that the Applicant does not request that any deponent of any affidavit relied upon by the Respondent be made available for cross-examination, the issue is to be determined on the papers. Otherwise, the application for costs is to be re-listed for hearing upon application made to the Registrar.”
  1. [32]
    After that and as has been noted above, the further application was dealt with in Hervey Bay on 15 February 2017 and this matter is now understood to have been finalised, save for determining the application for costs.

Discussion

  1. [33]
    In the exercise of the discretion as to the costs of this proceeding, it is necessary to have regard to the nature of the proceedings and the costs incurred by the applicant over a somewhat protracted period and in pursuit of the obvious public interest of securing obedience to planning laws. However and as was properly recognised on and from 30 September 2016, there was the competing consideration of the respondent’s right to lawful use of his land and his interests and circumstances as to this being his only place of residence. And it was in that context that the primary focus of the application moved from the contentions as to the past illegal use of the land and to the issue as to the regularisation of the present and future use of the land by the respondent.
  1. [34]
    That position is most clearly ascertained from the terms of the order made finally and pursuant to s 604 of SPA on 9 December 2016. However, even that order maintained some vestiges of the orders first made on 30 September 2016 and in respect of the concerns that had underpinned the original application. Notwithstanding what has been noted above as to the potential difficulties that confronted the application first brought to the Court, those were largely overtaken by the respondent’s preparedness to agree to the making of interim orders and the order ultimately made in intended final terms, on 9 December 2016 and in order to regularise his desired use of his land.
  1. [1]
    Accordingly, and whilst it is also to be noted that the interim orders made on 30 September 2016 and 4 November 2016 contain some more substantial provisions directed at the originating concerns and there were issues at times raised in respect of lack of compliance or at least delay in complete compliance by the respondent with those orders, there was not always common ground as to whether and how substantially compliance had or had not occurred. However and importantly, it should be noted that at no stage was the Court called upon to make any actual adjudication as to such issues, with the conclusion typically being an agreement as to the allowance of further time in order for such compliance to be established to the satisfaction of the applicant. Neither was there any adjudication of the basis upon which the application was originally brought, including as to the discretionary considerations that may have been involved in consideration of an application “for an order to remedy or restrain the commission of a development offence”.[21]
  1. [2]
    As may be noted from the terms of para 4 of the order made on 9 December 2016, the only remaining concern at that time, was as to the final removal of some remnants of the past use of the land. It should also be noted that by then, it had become clear that the applicant could not maintain insistence on complete removal of some items which had been the specific subject of the earlier interim orders, such as the white caravan or mini bus, if such was not being used for ongoing habitable/residential purposes.
  1. [3]
    Accordingly, it may be seen that the relative success of the parties to the proceedings may not be seen as tending all in one direction. And the applicant’s contentions that the respondent had participated in the proceedings without reasonable prospects of success or participated in the proceedings on a limited basis and that he failed to comply with the orders made on 30 September 2016 and 4 November 2016, should not be accepted, particularly in so far as they are purported bases for the request for a costs order on the indemnity basis.[22]  However and whilst it can be noted that some of the difficulties that the applicant has confronted in dealing with the respondent in the context of this application, may be put down to some lack of sophistication on his part and his attempts to deal with this matter as a self-represented litigant and with what proved to be, at times, some over-estimation or unwarranted optimism as to his ability to achieve the agreements reflected as interim orders:
  1. (a)
     it should not be accepted that delays on the part of the respondent in respect of matters that were totally within his control, may be put down to or excused to by reference to his medical conditions;
  1. (b)
     but it should be noted that the materials belatedly provided,[23] whilst not supporting a contention of impecuniosity, do support a conclusion of limited means and the complication of delay in obtaining financial accommodation in order to proceed with establishment of a lawful dwelling house on the land. 
  1. [4]
    However and notwithstanding the respondent’s limited means, the applicant does, with justification, rely on the delay and absence of any meaningful response to its communications prior to the making of the application[24] and that it was only in the context of the engagement of the Court by the filing of the application that some action, as reflected in the orders first made on 30 September 2016, was achieved.  It is also correctly pointed out, in the context of the compensatory principles applicable to the issue of costs,[25] that further costs were incurred due to ongoing delays in achieving the desired outcome of regularising the respondent’s otherwise acknowledged unlawful residence upon the land. 

Conclusion

  1. [5]
    In these circumstances, it is appropriate to allow some recovery of costs by the applicant. However and in the context of the adjournment of the proceedings on 23 September 2016, due to the absence of proper service on the respondent, this should not include the costs of that court appearance. And after that it is appropriate to recognise the mixed considerations, particularly as to the relative success in respect of the change in the primary focus of the application and as reflected in the agreed orders made thereafter, by allowing recovery of only 50 percent of the applicant’s costs.
  1. [6]
    As required by s 457(6) of SPA, the costs of the proceeding and as to which recovery is allowed, include investigation costs as determined by the court to have been reasonably incurred.[26]  However and pursuant to s 457(15) of SPA and as the determination as to the reasonableness of incurrence of costs is essentially a function of assessment of costs, as might be performed under such provisions, it is appropriate to order that, if not otherwise agreed, the costs be assessed under chapter 17A, Part 3 of the Uniform Civil Procedure Rules 1999 and as if this were an order of the District Court.[27]

Footnotes

[1]See UCPR 606(3) and 668, noting also the injunctive nature of the relief sought to be varied.

[2]Applicant’s outline of submissions, filed 9/12/16 at [11] – [16]. 

[3]Which mirrors the provision in UCPR 681.

[4]See Oshlack v Richmond River Council (1998) 193 CLR 72 at [97].

[5]Interchase Corporation Ltd (in liq) v Grosvenor Hill Qld Pty Ltd (no 3) [2003] 1 Qd R 26 at [79] – [85].

[6]Section 457(7) SPA. 

[7]Applicant’s outline of submissions filed 9/12/16 at [14].

[8]Affidavit of V.L. Butler filed 20/9/16, at [4]-[17].

[9]See affidavit filed 20/09/16 and cf affidavit of N.A. Bannerman filed 20/09/16.

[10]Filed 20/09/16.

[11]It may be noted that in her affidavit (at [6]) Ms Stenholm herself was careful to describe her affidavit as setting out her opinion “in relation to town planning issues relevant to the proceeding”.  And she expressly acknowledged that the question as to whether any development offence has been committed in one for the Court (at [29]).

[12]Affidavit of T.M. Stenholm filed 20/09/16, at [15].

[13]Ibid at [20].

[14][2012] QCA 44, at [16]-[20], [43]-[50] and [73]-[74].

[15](1938) 60 CLR 336 and see s 604, noting also both the nature and breadth of the powers given to the Court in s 605 and s 606  of SPA.

[16]As defined in Schedule 3 of SPA.

[17]As had first been raised on his behalf in his solicitor’s letter dated 02/09/16: see Exhibit G of Affidavit of JM Marshall filed 20/09/16.

[18]It may be noted that orders pursuant to s 603 may be made without the necessity of establishing a development offence.

[19]Affidavits of S J Eager, J N Ireland and J M Marshall, each sworn on 27/10/16.

[20]See draft order prepared by the applicant and provided on 28/10/16.

[21]See s 601(1)(a) SPA and Mudie v Gainriver [2002] 2 Qd R 53 at [13] and Warringah Shire Council v Sedevic (1987) 10 NSWLR 336 at 339-341.

[22]As discussed in Paroz v Paroz [2010] QSC 157.

[23]As noted above (see para [6]), whilst these were received in respect of the further application by the respondent, dealt with on 15 February 2017, they were then noted as accepted to be taken into account in deciding this application. 

[24]See Affidavit of J M Marshall, filed 20/9/16.

[25]Latoudis v Casey (1990) 170 CLR 534.

[26]Section 457(7) of SPA. 

[27]Cf: s 457(16) of SPA, which would otherwise allow for enforcement of this order as an order of the District Court. 

Close

Editorial Notes

  • Published Case Name:

    Gympie Regional Council v Tregoning

  • Shortened Case Name:

    Gympie Regional Council v Tregoning

  • MNC:

    [2017] QPEC 20

  • Court:

    QPEC

  • Judge(s):

    Long DCJ

  • Date:

    04 Apr 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
2 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2012] QCA 44
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Interchase Corporation Limited v ACN 010 087 573 Pty Ltd[2003] 1 Qd R 26; [2001] QCA 191
2 citations
Jump To
Cite 1 - [2003] 1 Qd R 26
Cite 2 - [2003] 1 Qd R 26
Latoudis v Casey (1990) 170 CLR 534
2 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Mudie v Gainriver P/L[2002] 2 Qd R 53; [2001] QCA 382
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 53
Cite 2 - [2002] 2 Qd R 53
Oshlack v Richmond River Council (1998) 193 CLR 72
2 citations
Jump To
Cite 1 - (1998) 193 CLR 72
Cite 2 - (1998) 193 CLR 72
Paroz v Paroz (No 2) [2010] QSC 157
2 citations
Jump To
Cite 1 - [2010] QSC 157
Cite 2 - [2010] QSC 157
Warringah Shire Council v Sedevic (1987) 10 NSWLR 336
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 336
Cite 2 - (1987) 10 NSWLR 336

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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