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Favero v Council of the City of Gold Coast QPEC 61
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Favero v Council of the City of Gold Coast  QPEC 61
NAOMI JEAN FAVERO
COUNCIL OF THE CITY OF GOLD COAST
Planning and Environment
Planning and Environment Court, Southport
28 November 2019
On the papers
Kent QC, DCJ
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – where the appellant appealed an enforcement notice issued by the respondent – where the respondent withdrew the enforcement notice and the court allowed the appeal on that basis – where parties generally bear their own costs – whether a costs order should be made under the Planning and Environment Court Act 2016 s 60, that is; whether the proceeding was started or conducted primarily for an improper purpose; whether it was frivolous or vexatious; whether the respondent introduced or sought to introduce new material; whether the respondent defaulted in the relevant procedural requirements; and whether the respondent properly discharged its responsibilities in the proceedings.
Planning and Environment Court Act 2016 s 10(2), s 45(3), s 59, s 60
Planning and Environment Court Rules
Uniform Civil Procedure Rules 1999
Dey v Victorian Railway Commissioners (1949) 78 CLR 62, cited.
Meridien AB Pty Ltd & Anor v Jackson & Ors  1 Qd R 142, cited.
Moramou 2 Pty Ltd v Brisbane City Council  QPEC 22, applied.
MTAA Superannuation Fund Pty Ltd v Logan City Council & Anor  QPEC 34, cited.
Shaw v Brisbane City Council & Anor  QPELR 57, cited.
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2)  QPEC 9, followed.
Warringah Shire Council v Sedevcic  10 NSWLR 335, cited.
A Knox (Sol) for the appellant
K W Wylie for the respondent
Hickey Lawyers for the appellant
McInnes Wilson for the respondent
- This proceeding concerns an enforcement notice given by the respondent Council to the appellant on 22 October 2018. The notice having been withdrawn, the argument has contracted to a costs issue.
- The context is that the appellant is the registered owner of land at 14 Waterside Esplanade, Helensvale, more particularly described as Lot 6 on Survey Plan 244407. It is a lot within the Peninsula Community Title Scheme 29790.
- Pursuant to the relevant Community Management Statement, Lot 6 enjoys exclusive use rights for part of the common property between it and the adjoining Salt Water Creek (the Lot 6 EU area); it is a creek front property with access to Waterside Esplanade to the south and Salt Water Creek to the north.
- The Community Title Scheme was developed pursuant to a permit for reconfiguring a lot in 2008 (the Peninsula CTS DA). The management of the relevant part of the common property between Lot 6 and the adjoining Salt Water Creek falls to be determined by the requirement (Condition 24 of the DA) to comply with the registerable planning Covenant for the common property buffer, which is relevantly defined to include the 10 metre strip of land adjoining Salt Water Creek. The buffer is to be preserved for coastal protection and management purposes and the relevant Coastal Management Program provides:
“8.2 No buildings or structures may be constructed or erected in the buffer other than the fence mentioned in clause 9.3 …”
- In practice what is required is the construction of a fence between Lot 6 and the Lot 6 EU area, with a gate between the areas being permitted; other buildings or structures are not permitted.
- The Council submits that the requirement for compliance with these various conditions does not lie peculiarly with the owners of the land the subject of the approval, but rather extend to successors in title and any occupier of the land.
The enforcement notice
- The enforcement notice was issued because it was found that a fence had been erected, enclosing play equipment, into the buffer area. The evidence is said to indicate that the structures were installed for the sole benefit of the owner and occupier of Lot 6. This is said by the Council to have been contrary to the requirements of the Covenants and the Coastal Management Plan and thus contrary to Condition 24 of the development approval. In turn, this is said to have been the contravention of s 164 of the Planning Act 2016, which makes such behaviour a “development offence”.
- The above narrative is the context for the issue by the Council of the enforcement notice. As outlined by the Council, it was reasonable for them to do so where the threshold is a “reasonable belief” that a development offence has been committed; it was open to give the notice to the appellant as the “owner” and it was reasonable for the Council to form a belief that the owner of Lot 6, directly or indirectly, was responsible for the construction.
- Accordingly on 13 November 2018, the appellant appealed to this court against the Council’s decision to give the enforcement notice. Her position was set out in the Notice of Appeal. It was that Condition 24 applies only to the Lot 6 EU area, and not Lot 6 itself; the obligation to comply with Condition 24 is limited to the applicant of the Peninsula CTS DA (i.e. not her), and the only remedy for non-compliance lies against them; and the additional fencing and play equipment are either not “buildings or structures” or were not placed there by the appellant.
- The appellant’s position thus was that the obligation to comply with the identified requirements was limited to Mortons Urban Solutions as the “applicant” for the common property buffer to Salt Water Creek, which is limited to the Covenant area of which the appellant’s premises does not form part. The body corporate for Peninsula CTS 29790 as the registered proprietor of the covenant area is the Covenantor (not the appellant); reference was also made to the definition of “structure”.
- Further, the appellant as the registered owner and occupier of an adjacent lot, together with her invitees, is permitted access to the Covenant area subject to such access not resulting in damage to the Covenant area. It was argued that no buildings or structures had been constructed or erected by the appellant in the Covenant area. Thus, the appellant both denied that the relevant terms of the 2008 approval applied to her and further that she had not in any event contravened the relevant section of the Sustainable Planning Act 2009 or s 164 of the Planning Act.
- The parties engaged in vigorous correspondence as to the merits of the notice, and thereafter on 31 July 2019 the respondent withdrew the enforcement notice. On 23 August 2019 orders were made that the appeal was allowed on that basis and giving directions in relation to material concerning a costs application. Thereafter, the appellant filed submissions on the question of costs on 30 September 2019; the respondent filed its outline of argument on the question on 18 October and on 21 October the appellant filed its submissions in reply.
The appellant’s submissions
- The appellant submits that the appeal was conducted as an exercise of the court’s jurisdiction under the Planning and Environment Court Act 2016 (“PECA”). The jurisdiction is conferred by ss 59 and 60 thereof. The default position is that the parties bear their own costs; s 59. Section 60 contemplates costs orders being made where appropriate, relevantly, if the proceeding was started or conducted primarily for an improper purpose; where it was frivolous or vexatious (for example without reasonable prospects of success); where the respondent introduced or sought to introduce new material; where the respondent defaulted in the relevant procedural requirements; and where the respondent is said not to have properly discharged its responsibilities in the proceedings.
- The appellant submits in this context that the appeal was conducted primarily for an improper purpose. What is argued in this context is that pursuant to s 45(3) of PECA the onus was on the respondent to establish the appeal should be dismissed. Thus once the notice of appeal containing the relevant grounds was filed, the respondent, as the active party bearing the onus, in accordance with the rules and relevant practice directions, was obliged to conduct the appeal in an expeditious manner. This included applying for relevant orders or directions in a timely way to progress the matter; conversely no such obligation lay upon the appellant. Thus the appellant criticises the respondent for failing to comply with its obligation to proceed in an expeditious way in the appeal (see s 10(2)) of the PECA; also paragraph 5 of Practice Direction No. 1 of 2019, requiring an application for orders or directions about the future conduct of a proceeding within six weeks of the institution thereof; and the requirements of the Planning and Environment Court Rules and the Uniform Civil Procedure Rules 1999).
- Thus the appellant submits that the chronology of events was as follows: firstly the ongoing correspondence between the parties between May and July 2019; followed by the respondent’s application in a pending proceeding filed 26 July 2019; and then the withdrawal of the enforcement notice. This, so it is said, amounts in that context to improper delay by the respondent. This is said to constitute an improper purpose or abuse of process; in particular, persisting with the enforcement notice from at least 2 May 2019 onwards until the notice of the withdrawal of the enforcement notice on 2 August 2019.
- The appellant refers to the responsibilities imposed on the parties to do what the legislation requires of them.
- The appellant also refers to Dey v Victorian Railway Commissioners per Dixon J at 91:
“The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims.”
- Thus the submission seems to be that, given the enforcement notice was ultimately withdrawn, the proceedings to that point, conducted in breach of the obligations by the party bearing the onus, are capable of being seen as for an “improper purpose”.
Frivolous or vexatious
- The appellant next submits that for similar reasons the respondent’s issue of the enforcement notice and subsequent continued resistance of the appeal is capable of being described as frivolous or vexatious, particularly where the appellant’s position was set out comprehensively in the notice of appeal. In this context, the appellant refers to the respondent’s continued assertion by email of 2 May 2019 of a continuing development offence. There was then an offer by the appellant to resolve the appeal on the basis that it should be allowed with each party bearing their own costs, such offer remaining open until 4.00 pm on 31 May 2019. It is then said that there was no relevant communication until the respondent made the application in the pending proceeding referred to above, in late July. The appellant refers to Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) as to the meaning of “frivolous or vexatious”. Broadly, it is submitted that the jurisdiction is engaged in circumstances where there were no reasonable prospects of success; where there is resistance to an appeal on assertions which were groundless. Thus the appellant characterises this as such a case.
- The appellant also complains that the respondent sought to introduce new material in the proceeding, by seeking to contend the appellant was occupying the covenant area. The appellant denies that the Covenant area is under the control of or occupied by the appellant as a matter of law. This is said to be another basis for the costs order.
Default in the P&E Court’s procedural requirements
- In this context, as outlined above, it is argued that the respondent failed to comply with the rules and practice direction in properly advancing the appeal as it was required to do.
Section 60(1)(i): The respondent has not properly discharged is responsibilities in the proceedings.
- Again, the appellant repeats and relies upon the matters outlined above. Reliance is also placed on Sincere International Group (Supra) at -. There is emphasis on the implied undertaking to proceed in an expeditious way. This is said to mean “done quickly and efficiently”; “efficient and speedy”; “marked by or acting with prompt efficiency”; “quick and effective”. There is also reference to s 10(2) of PECA as outlined above. Thus there is an obligation on a local authority such as the respondent in this case to properly assess the merits of its case and acknowledge and address shortcomings therein where appropriate. This assessment ought be carried out at a number of stages in the litigation and be responsive to new material that comes to light. However there is not an obligation to capitulate at the first sign its case may not succeed. His Honour said “it is how a party responds to, and runs its case responsive to this assessment, which will be of import for the purposes of s 10(2) of PECA.”
- The appellant points to the matters summarised above and submits that there was always an inability on the respondent to discharge its onus. This should have been recognised. The appellant’s solicitors’ without prejudice correspondence outlined the problems and refusal or rejection thereof was imprudent. In the circumstances indemnity costs are appropriate. Thus it is submitted that it is entitled to its costs on the standard basis up to 2 May 2019 and thereafter on an indemnity basis.
- The respondent conversely submits that the appellant’s application for costs is without merit. None of the relevant circumstances in s 60 have been properly established so as to displace the general rule in s 59. There is said to be no established nexus between the Council’s conduct and increased costs incurred in the proceeding. There is no precedent for a costs order being made where the proceeding is resolved by consent at the earliest lawful opportunity and there is nothing in the conduct of the Council associated with the giving of the enforcement notice suggesting it has acted unreasonably.
- The respondent submits that there was no improper purpose. Firstly, the “proper purpose” of local authorities such as the respondent is the enforcement of the planning laws within its local government area. The respondent submits that, if the complaint is of the Council’s failure to progress the appeal by filing for directions at an earlier time, this does not amount to an otherwise unparticularised “improper purpose”. It points to:
- (a)its duty to ensure compliance with development laws such as condition 24;
- (b)the fact that it withdrew the enforcement notice prior to the first return date of the proceeding;
- (c)once the appeal was commenced the requirement to comply with the enforcement notice was stayed, such that there was no prejudice to the appellant from any delay between commencement of the appeal and its resolution. The respondent points to the fact that there is no sworn material as to any other prejudice; and also to the feature that at the first return date an order was made allowing the appeal on the basis that the enforcement notice had been withdrawn. In these circumstances, no improper purpose is identified.
Frivolous and Vexatious
- As to “frivolous and vexatious” the respondent denies that its conduct is within this description. It referred to Sincere International (Supra) as outlined above. The respondent points out that the Council did not file a proper response to the grounds to the notice of appeal, because the matter was summarily terminated. However it is submitted that it appears “undeniable” that a development offence was committed by someone, and it was open to give an enforcement notice to the appellant as either the “owner” or “occupier” of the relevant area, or a person who may have caused the structures to be installed.
- As to the respondent’s failure to accept the Calderbank offer of 21 May 2019, it contained conditions which are said by the respondent to be unreasonable, being the removal of only part of the additional fencing and none of the play equipment, and a written acknowledgement that the appellant was not committing a development offence. Thus in all the circumstances the conduct by the respondent was not frivolous or vexatious.
- In this context the respondent submits that the Council simply engaged the arguments that the enforcement notice was inappropriate or wrong, and there was nothing improper in such a course. The respondent submits, in effect, that, having been made aware of the arguments in the notice of appeal, it was simply properly engaging the issues therein. This was followed by the withdrawal of the enforcement notice in circumstances which, in the respondent’s submission, do not give rise to a costs order.
Default in procedural requirements, and not properly discharging responsibilities
- In this context the respondent submits that there was correspondence between the parties from May 2019 onwards to attempt to compromise the proceedings. There was no identifiable loss or prejudice to the appellant from perceived delay, particularly where the compliance with the enforcement notice was stayed. It is submitted that there were no identifiable further legal costs in this period and it was always open to the appellant to make its own application in relation to directions, its failure to do so being unexplained. Thus it is also said that there is no perceptible nexus between the impugned conduct and any additional costs.
- The respondent submits that reference to Sincere (supra) is a distraction where that was really a different kind of case being a contested merits appeal that progressed to a full hearing, and it was in that context that there were observations about the obligation to properly assess the merits of the case at an earlier stage.
- In the circumstances outlined above the respondent resists indemnity costs, arguing that there was no blatant course of conduct amounting to an abuse of process; it withdrew the enforcement notice and consented to orders allowing the appeal on that basis, at a relatively early stage.
- Further, in relation to the reliance on a Calderbank offer, the respondent points to the observations of Everson DCJ in Moramou 2 Pty Ltd v Brisbane City Council  QPEC 22:
“ The appellant further seeks costs pursuant to a Calderbank offer made on 28 November 2018. In circumstances where the respondent has an obligation to enforce compliance with the planning controls administered by it, there are considerations of public policy which make a Calderbank offer an unattractive, and in all likelihood, irrelevant consideration in a costs application pursuant to an appeal such as this. The offer also sought to dispose of the unlawful building work issue in a summary way which is a most unattractive outcome. In the circumstances I disregard the Calderbank offer.”
- The respondent submits that a similar approach should apply in this case. Further, it is argued that it was not imprudent for the Council to refuse the offer described in the correspondence where the offer would have resulted in structures remaining in the Lot 6 EU area contrary to the requirements of Condition 24, the covenant and the Coastal Management Program, and further where the offer also required the Council to declare that the appellant was not committing a development offence, something which it could not do at law and was, at least in the Council’s assessment, inconsistent with the evidence.
- Overall, the respondent argues there should be no costs order, let alone any order on the indemnity basis. The respondent emphasises that the matter was withdrawn before the first court appearance and the appellant was not required to file any evidence concerning the appeal or take any other substantive steps. It is submitted that there is no reported decision of the P&E Court making a costs order in similar circumstances. It is also submitted that a costs order in these circumstances could have the unintended consequence of actually deterring early resolution in similar circumstances in the future.
- In reply the appellant emphasises the lack of merit in the original notice and the continued wrongful adherence to the idea that the appellant was the occupier of the Covenant area; the lack of sworn material by the respondent as to its delay; and the principle of statutory construction, regarding s 60, that the text itself is the starting point. She refers to the respondent’s patent delay, said to exceed 8 months; the lack of material as to a proper investigation; and generally submits the respondent failed to discharge its responsibilities. She acknowledges the observations from Moramou, but argues that the present case is distinguishable because of the egregious conduct.
- As outlined above, costs are a creature of statute and in this case are confined by the jurisdiction in ss 59 and 60. The default position is that parties bear their own costs, and this is to be varied only when the various possibilities contemplated by s 60 are activated.
- Although it is not, given the early stage of the proceedings, completely clear, it seems that the lack of merit in the enforcement notice was indeed most likely a basic and objectively ascertainable mixed question of law and fact; for the various reasons advanced by the appellant, she could not be shown to have been the proper respondent to the enforcement notice. It is also correct that the appeal proceeded at a somewhat leisurely pace thereafter. Although the onus would have been on the respondent, at the hearing of the appeal, to establish that it should be dismissed, this is not, in my view, congruent with the idea that it was the respondent who had the conduct, or at least the sole conduct, of the appellate proceedings, in the sense that it was the respondent and only the respondent who had any of the obligations under the legislation and practice directions referred, to progress the matter.
- Even though the respondent, as the party bearing the onus, may not have been terribly “active” from the initiation of the appeal onwards, it is also true that the appellant could have made applications for orders or directions in the timeframe contemplated by the practice direction. Once the respondent seems to have come to grips with its difficulties, it is true to say that the matter was brought to an end by the time of the first court appearance. However this is of limited relevance; what is in dispute is the responsibility for costs to that point. If the enforcement notice should not in truth have been commenced, the respondent’s early capitulation merely saved yet further unnecessary costs.
- The Calderbank offer served to put the respondent on notice as to the difficulties of its position, although I also accept the force of the respondent’s submissions on this topic and the observations by Everson DCJ in Moramou, with which I respectfully agree.
- Overall I do not accept that there is established on the evidence any improper purpose pursuant to s 60. Nor do I accept that any default in procedural requirements or properly discharging the respondent’s responsibilities enlivens the jurisdiction in relation to costs.
- However my conclusion is that the enforcement notice and the initial resistance to the appeal are within the category of “frivolous and vexatious” in circumstances where the basic flaw in the notice, apparently fatal to its prospects, should have been known to, or ascertained by, the respondent before giving it. In all the circumstances the application for costs is allowed. The respondent will pay the appellant’s costs of the appeal including this application on the standard basis.
 Affidavit of Ms McCabe, Exhibit p 110.
 Planning Act 2016 (Qld), s 73(b).
 Reference is made to a comparison with the party provisions of the Criminal Code, s 7.
 Shaw v Brisbane City Council & Anor  QPELR 57 at 58 per Quirk DCJ.
 (1949) 78 CLR 62.
  QPEC 9 at -.
 MTAA Superannuation Fund Pty Ltd v Logan City Council & Anor  QPEC 34.
 Warringah Shire Council v Sedevcic  10 NSWLR 335 at 340.
 At -.
 See Meridien AB Pty Ltd & Anor v Jackson & Ors  1 Qd R 142 at - and the cases there referred to.
- Published Case Name:
Naomi Jean Favero v Council of the City of Gold Coast
- Shortened Case Name:
Favero v Council of the City of Gold Coast
 QPEC 61
28 Nov 2019