Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2)
[2017] QPEC 76
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2)[2017] QPEC 76
- Add to List
Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2)[2017] QPEC 76
Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2)[2017] QPEC 76
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2) [2017] QPEC 76 |
PARTIES: | TRASPUNT NO 4 PTY LTD (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) |
FILE NO/S: | 3002/12 |
DIVISION: | Planning & Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning & Environment Court of Queensland at Brisbane |
DELIVERED ON: | 15 December 2017 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 3 December 2015 |
JUDGE: | Horneman-Wren SC DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – COSTS – where further order required in respect to the proper disposal of the proceeding – where respondent seeks its costs on an indemnity basis, limited to those costs of its second set of written submissions and the hearing on 3 December 2015 – where appeal to be allowed to the extent that it be declared that the clearing of firebreaks is essential management and not assessable development is appropriate – where an order made that each party must bear its own cost of the appeal |
COUNSEL: | Mr S J Given for the appellant Mr A Skoien for the respondent |
SOLICITORS: | Hallett Legal for the appellant Moreton Bay Legal Services Department for the respondent |
- [1]Following the delivery of the court’s substantive reasons for judgment,[1] the parties were heard further on two issues: the proper order disposing of the proceeding and costs.
Dispositive Order
- [2]Mr Given submitted that an order allowing the appeal to the extent that it relates to the clearing of firebreaks along the northern and eastern boundaries of lots 909 and 910 on SP198688 would suffice. This was the order foreshadowed in the substantive judgment. Mr Given submitted that there was no requirement for conditions to be imposed because no approval was necessary for that clearing work.
- [3]Mr Skoien, in written submissions, took a different view. He contended that because the only justifiable clearing proposed by the appellant is exempt development, and not assessable development requiring a development permit, the appropriate order was one dismissing the appeal.
- [4]On the hearing, Mr Skoien conceded that the more appropriate order was one allowing the appeal.
- [5]Section 496(1) of the Sustainable Planning Act 2009 permits the court, in deciding an appeal, to make the order it considers appropriate.
- [6]Having considered the matter further, I have concluded that an order allowing the appeal to the extent that it be declared that the clearing of firebreaks along the northern and eastern boundaries of lots 909 and 910 on SP198688 is essential management and not assessable development is appropriate.
Costs
- [7]The appellant raised the issue of costs in its written submissions. The court had not sought submissions on costs. No application for costs was filed.
- [8]The respondent, in its first written submissions, observed that despite its requests that the appellant do so, no application was filed in relation to its claim for costs. In the absence of such an application it said that it was unaware of the basis upon which the appellant sought costs and, therefore, faced difficulty in addressing any particular aspects of the appellant’s claim for costs.
- [9]As to the absence of an application, the appellant in the hearing submitted that there was no requirement for a formal application, it being an application within a pending proceeding to which rr 35 to 37 of the Planning and Environment Court Rules 2010 applied. However, r 35(a) requires such an application to be made in an approved form. The appellant did not comply with the rules.
- [10]Nonetheless, the basis upon which the appellant sought an order for costs was set out in its written submissions. Those submissions were advanced on the basis that, pursuant to s 457(1) of the Sustainable Planning Act 2009, costs were in the discretion of the court. The submissions referred to, but did not address in any detail, the matters to which regard may be had in exercising the discretion under s 457(1) as described by s 457(2).
- [11]The appellant submitted that contrary to the advice provided by the respondent council no application was necessary in respect of the northern boundaries of lots 909 and 910 and that considerable time, evidence and expense had been incurred on that issue. It submitted that as a matter of fairness in the circumstances of the case it would be reasonable for the court to order the respondent to pay a proportion of its costs; and suggested 80 percent.
- [12]However, as the respondent’s written submissions identified, the form of s 457 addressed in the appellant’s submissions was not that which applied in the appeal. The earlier form of s 457, preserved by the transitional provisions of s 945, applied. The primary position under the relevant version of s 457 is that each party must bear its own costs.[2] A discretion to award costs as the court considers appropriate is conferred[3] in certain specified circumstances. The respondent addressed each of those circumstances and submitted that they did not arise and that the discretion was therefore not enlivened.
- [13]In submissions in reply the appellant conceded that its earlier submissions had addressed the incorrect legislative provisions. Nonetheless, it was submitted that the discretion was enlivened under s 457(2)(i) in the form in which it existed at the relevant time. The circumstance as prescribed by s 457(2)(i) is, relevantly, that a local government does not properly discharge its responsibilities in the proceedings.
- [14]The argument of the appellant runs in this way.
- [15]Section 4(a) of the Sustainable Planning Act 2009 obliged the respondent to exercise the power conferred upon it under the Act in a way that advances the Act’s purpose. Pursuant to s 5(1)(a)(I) advancing the Act’s purpose includes ensuring that the decision making processes are accountable.
- [16]The appellant then submits that pursuant to r 5(3) of the Uniform Civil Procedure Rules, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way and that:
“Contrary to the advice of the Council, at least in relation to the northern and eastern boundaries of lots 909 and 910, no application was necessary and this issue ought not to have been litigated. It is submitted that this amounts to a failure by the respondent to comply with s 5 of the UCPR and s 457(2)(i) of the SPA and a proportion of the costs ought to be awarded in favour of the appellant.”
- [17]The appellant’s attempt to invoke the implied undertaking under r 5(3) of the UCPR is misplaced. The UCPR does not apply to proceedings in this court.[4] However, r 4(3) of the Planning and Environment Court Rules is in the same terms. Even so, the alleged failure of the council to comply with that implied undertaking should be rejected. The court’s determination that no application was necessary in respect of that part of the works does not lead to the conclusion that the issue ought not to have been litigated.
- [18]The issue was complex. Its resolution involved detailed statutory interpretation and analysis of the relevant evidence. The court’s reasons on the issue extended to some 42 paragraphs.[5] In my view, it cannot be said that by litigating that issue the respondent has not properly discharged its responsibility in the proceedings.
- [19]Overall, as the respondent submits, the parties enjoyed mixed success in the proceedings. I am of the view that none of the circumstances prescribed by s 457(2) arise such as to invoke the court’s discretion to depart from the primary position prescribed by s 457(1). In respect of the proceedings, generally, the parties must bear their own costs.
The respondent’s application for costs
- [20]The respondent seeks its costs, on an indemnity basis, limited to those costs of its second set of written submissions and the hearing on 3 December 2015.
- [21]It submits that the appellant’s failure to identify the proper provisions governing the costs regime is evidence of a failure on the part of the appellant to act reasonably in the conduct of the costs aspect of the litigation.
- [22]In its initial written submissions the respondent had expressly not sought its own costs of resisting the appellant’s claim for costs. However, after having received the appellant’s submissions which identified costs were being sought under the wrong legislative provision, it sought, through a second written submission, its costs of responding to the appellant’s costs application, limited to the costs of those second submissions and the hearing. The respondent submits that it had been put to considerable expense as a result of the appellant’s unreasonable conduct in bringing its claim for costs.
- [23]The costs were sought on an indemnity basis because the appellant, properly advised, ought to have known that, on the applicable costs provisions, it had no arguable basis for claiming costs.
- [24]On the hearing, the respondent submitted that the appellant’s claim for costs became frivolous and vexatious from the time at which the respondent’s original submissions were made concerning the proper version of s 547. If frivolous or vexatious the court’s jurisdiction to award costs for that part of the proceeding would arise under s 457(2)(b).
- [25]In my view, the respondent’s limited application for costs should be refused for two reasons.
- [26]First, as to the respondent’s second set of submissions, they were prepared subsequent to the appellant’s first written submission being received by the respondent, but prior to the appellant’s second written submission. It was in the latter that the appellant advanced its argument that the court’s discretion to award it costs was enlivened under s 457(2)(i). Had the second set of submissions of the respondent been prepared in response to the appellant’s second submission, there may have been more merit in its own application for costs in preparing its second submission.
- [27]However, the respondent’s second written submission really addressed why it should have the costs of its preparation of that submission which itself advanced the substantive issues for consideration under the correct version of s 457 no further than its first written submission. Anything said in that regard could as easily have been said orally at the hearing which was to proceed in any event. There was no requirement for it to prepare the second written submission in respect of which it now seeks its costs.
- [28]Secondly, in respect of the hearing, as Mr Given submitted, it would have proceeded in any event. The issue of the proper dispositive order was still alive on the respective written submissions. It was only resolved by the respondent’s concession in the course of the hearing.
Conclusion
- [29]For these reasons, the only order which ought be made concerning the costs of all aspects of the appeal is that each party must bear its own costs.
Disposition
The orders of the court are:
- The appeal is allowed to the extent that it is declared that the clearing of firebreaks along the northern and eastern boundaries of lots 909 and 910 on SP198688 is essential management and not assessable development.
- Each party must bear its own costs of the appeal.