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Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2)[2019] QPEC 9

Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2)[2019] QPEC 9

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9

PARTIES:

SINCERE INTERNATIONAL GROUP PTY LTD
(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST
(Respondent)

FILE NO:

2116/18

DIVISION:

Planning and Environment Court

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

22 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers (submissions received on 13, 19 and 21 December 2018)

JUDGE:

Williamson QC DCJ

ORDER:

Orders made in accordance with paragraph 121 of these reasons for judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – COSTS – where approval granted for reconfiguring a lot – where appeal against conditions requiring the amalgamation and dedication of two lots for environmental conservation purposes – where respondent changed position to contend for alternative conditions – where appeal was successful – whether the proceeding frivolous or vexatious – whether respondent sought to introduce new material – whether respondent discharged its responsibilities in the proceeding – whether costs should be awarded under s.60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis.

LEGISLATION:

Acts Interpretation Act 1954, s.14B.

Integrated Planning Act 1997, s.4.1.23

Local Government (Planning & Environment) Act 1990, s.7.6(1A)

Planning Act 2016, s.229 and Schedule 1

Planning and Environment Court Act 2016, s.10, 59, 60 and Schedule 1

CASES:

Altitude Corporation Pty Ltd v Isaac Regional Council (No.2) [2015] QPELR 139

Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd & Anor [2004] QPEC 028

Chief Executive, Department of Transport and Main Roads v Club Cavill Pty Ltd (No.2) [2012] QPELR 90

DeGiorgio v Dunn (No.2) (2005) 62 NSWLR 284

Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15

Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, Planning & Women [2006] QPELR 714

Ferreyra & Ors v Brisbane City Council (No.2) [2016] QPEC 13

Gold Coast City Council v Metrostar Pty Ltd & Ors [2004] QPEC 029

Jeteld Pty Ltd v Toowoomba Regional Council [2009] QPEC 83

Jeteld Pty Ltd v Toowoomba Regional Council [2010] QPELR 19

Ko v Brisbane City Council & Anor (No.2) [2018] QPEC 49

Lali Investments Pty Ltd v Burnett Shire Council [2006] QPELR 642

Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd R 271

M2 Property Group Pty Ltd v Gold Coast City Council [2005] QPEC 117

Shaw v Brisbane City Council & Ors [2000] QPELR 57

Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683

COUNSEL:

Mr A Skoien for the Appellant

Mr S Fynes-Clinton for the Respondent

SOLICITORS:

Hickey Lawyers for the Appellant

Norton Rose Fulbright for the Respondent

Introduction

  1. [1]
    This is an appeal under s.229 of the Planning Act 2016 (PA) against conditions imposed by the Council on an approval for the reconfiguration of land situated at the north-western corner of the intersection of Napper Road and Arundel Drive, Arundel (the land).  On 22 November 2018, I ordered that the appeal be allowed, and the Appellant’s (Sincere) development application be approved subject to an amended suite of conditions.  This order was made after a contested merits hearing. Reasons for judgment were published on 15 November 2018 (the RFJ).  The orders made by the Court, read with the RFJ, reflect that Sincere was wholly successful in its appeal.
  1. [2]
    Sincere now seeks an order that the Council pay its costs of the proceeding, partly assessed on the standard basis, and partly assessed on the indemnity basis. It contends the power to grant this relief arises under ss.60(1)(b)[1], (e)[2] and (i)[3]of the Planning and Environment Court Act 2016 (PECA). This power is an exception to s.59 of PECA, which provides that each party is to bear its own costs of the proceeding.
  1. [3]
    The application is advanced on the footing that s.60(1) of PECA is engaged in this case as a consequence of one, or more, of the following underlying assertions, namely:
  1. (a)
    the Council had no reasonable prospects of success in the appeal;
  1. (b)
    the Council introduced new material in the form of revised conditions of approval;
  1. (c)
    it was unreasonable for the Council to reject two offers to settle, made prior to the hearing of the appeal; and
  1. (d)
    the Council failed to discharge its responsibilities in the proceeding.
  1. [4]
    The Council opposes the application, and joins issue with the four underlying assertions set out in paragraph [3] above. Before dealing with each assertion, it is necessary to set out some relevant background matters.

Background

  1. [5]
    The development application the subject of the appeal sought approval to reconfigure the land. The application was code assessable, and was approved by the Council’s delegate on 8 May 2018. The approval is contained in a decision notice also dated 8 May 2018, and was granted subject to conditions.
  1. [6]
    The purpose of the reconfiguration is to create 67 community title lots, common property and two balance lots. The balance lots are identified in an approved plan of development as lots 900 and 901. The Council’s decision notice dated 8 May 2018 included conditions requiring the amalgamation, and dedication of lots 900 and 901. The lots were to be dedicated to the Council at no cost. The underlying rationale for the land dedication was identified in condition 7 of the decision notice as being for environmental and conservation purposes.
  1. [7]
    This appeal was commenced under the PA[4]. It is an appeal against conditions imposed on the decision notice of 8 May 2018 requiring the amalgamation of lots 900 and 901. The requirement to dedicate lot 900 was also challenged.  The notice of appeal was filed on 8 June 2018. An amended notice of appeal was filed on 18 June 2018.  The amendments made to the notice of appeal do not appear to be attributable to the Council. The amendments are in the form of corrections and additions to reflect that the challenge to conditions, given the timing of the appeal, was brought pursuant to the PA, rather than the Sustainable Planning Act 2009 (SPA).
  1. [8]
    Her Honour Judge Kefford made orders on 27 June 2018 for the future conduct of the appeal. One of the orders identified the disputed issues by reference to paragraphs 8 to 12 of the Amended notice of appeal. A review of this document reveals Sincere alleged that the conditions requiring lot 900 to be amalgamated with lot 901 and, in turn, dedicated to the Council, were not lawful for the purposes of s.65(1) of the PA. More particularly, it was alleged that the dedication of lot 900 was not required having regard to, inter alia, the following matters: (1) lot 900 was not mapped as having any environmental significance under the Vegetation Management Act 1999 or Nature Conservation Act 1994; (2) lot 900 was not mapped under the Council’s planning scheme, City Plan 2016, as having environmental significance; and (3) the dedication of lot 900 was not required to demonstrate compliance with City Plan 2016.
  1. [9]
    The issues identified in the Amended notice of appeal, and defined by the order of 27 June 2018, did not challenge the requirement to dedicate lot 901 to the Council for environmental purposes. This lot is 6285m2 in size and is vegetated.  Sincere has always accepted that this part of the land has ecological significance.  This significance is recognised by overlay mapping in City Plan 2016, namely the Environmental significance overlay mapping.
  1. [10]
    Each party nominated an expert ecologist to examine the need, if any, to dedicate lots 900 and 901 for environmental purposes. As was anticipated by the order of 27 June 2018, a joint report was completed by the nominated ecologists on 2 September 2018. Section 6.0 of the ecologists’ joint report concluded with the following remarks, which did not support a condition requiring the dedication of lot 900 for environmental purposes:

49. We understand that Council has requested Lot 900 be dedicated (to the respondent) for the purposes of koala “linkages”.  The appellant’s proposal is for a single dwelling house on Lot 900. 

50. We acknowledge that we have differing perspectives on importance of the subject land in terms of its strategic role in accommodating koala movement in the immediate area but agree that long-term utility of a koala (or fauna crossing) linkage at this location is less than ideal for reasons identified elsewhere in this JER. 

51. While the legal standing of the Parkwood-Coombabah Koala Population Study report may be arguable, we nevertheless acknowledge there are no State or Council endorsed mapping, documents, codes or policies that identifies any ecological value associated with Lot 900 which would support a request by Council to have the land dedicated.

52. However, and notwithstanding the above, we agree that a potential future fauna linkage (if feasible or practical) associated with Lot 900 does not necessarily require dedication of the landOther mechanisms and strategies such as we have identified herein could, in principle, achieve the same outcome. (emphasis added)

  1. [11]
    Following the receipt of the ecologists’ joint report, the Council through its solicitor formally notified a change to its position in the appeal. In a letter dated 11 September 2018, the Council formally notified that it would no longer contend for conditions requiring the dedication of lot 900 for environmental and conservation purposes. Rather, it notified that it would contend for an amended set of conditions in the appeal. The letter of 11 September 2018 stated:

Our client will now be contending for the amended set of conditions (as shown in tracked changes), which is enclosed for your consideration.  We also enclose an aerial map for Lot 900 showing the proposed building envelope location for Lot 900.  The amended conditions seek to reflect the mechanisms and strategies referred to in the ecology joint report to achieve a potential fauna linkage in lieu of the dedication of lot 900.”

  1. [12]
    The amended conditions package included a new condition 8, which is set out in full in paragraph [6] of the RFJ. The purpose of condition 8 (and associated consequential amendments to the decision notice of 8 May 2018) was to constrain future development on lot 900. The constraints applied to the location and extent of future development. The new condition also: (1) required erection of fauna friendly fencing; (2) prohibited the presence of domestic dogs; and (3) required part of the lot to be rehabilitated for koala habitat purposes.
  1. [13]
    Sincere, through its solicitor, responded to the Council’s change in position by way of without prejudice correspondence (save as to costs), dated 13 September 2018, which stated:

Apart from the registration of an easement to facilitate access to Lot 901 and provision of koala friendly fencing on the southern part of Lot 900 to enable a potential connectivity opportunity across Arundel Drive which our client is willing to agree, revised conditions 8 to 13 as attached to your above correspondence are not acceptable to our client…”

  1. [14]
    A second letter responding to the change in position was sent by Sincere’s solicitor. The letter was an open letter, and dated 19 September 2018. The letter intimated that Sincere would be prepared to resolve the appeal by agreeing to the grant of an easement over Lot 900 for access purposes, and would accept condition 8 in an amended form, namely:

Lot 900

a. Koala friendly fencing must be erected on the southern boundary of Lot 900 parallel to the Napper Road frontage, prior to the sealing of the survey plan that creates Lot 900. To this end, fencing must include a minimum ground clearance of 250 mm.”

  1. [15]
    In an effort to resolve the appeal by agreement, Sincere made a written offer to the Council. The offer was made in correspondence dated 25 September 2018, and marked without prejudice, save as to costs. The letter of offer stated, in part:

Offer

Our client wishes to attempt to reach a negotiated outcome with the Council to save the costs of a hearing. As such, we are instructed that the Appellant is prepared to resolve this appeal on the basis that the Court make an order in the following terms:

1. The appeal be allowed;

2. The development application the subject of the appeal be approved, subject to the attached conditions of approval;

3. Each party bear their own costs.

Way Forward

Our client’s offer to settle remains open until 4.00pm on Friday, 28 September 2018.

In the event that this offer is rejected, our client intends to make an application for costs if it is successful at the hearing of the appeal, in reliance on this letter…

  1. [16]
    The suite of conditions attached to the without prejudice letter of 25 September 2018 did not include a requirement to dedicate Lot 900. This was consistent with the open letter dated 19 September 2018, which is referred to in paragraph [14] above. The suite of conditions attached to the without prejudice offer reflected that Sincere was prepared to resolve the appeal on the basis it would grant an easement over Lot 900 for access purposes, and would accept condition 8 in the amended form set out in paragraph [14] above.
  1. [17]
    I was not directed to that part of the material evidencing the Council’s response to the without prejudice offer of 25 September 2018. It was however common ground that the offer was not accepted prior to its expiration on 28 September 2018.
  1. [18]
    The evidence establishes that the Council did attempt to resolve the appeal by agreement. For example, the parties attended a Court ordered without prejudice conference, chaired by the ADR Registrar. There is no evidence to suggest that the attempts made by the Council to resolve the appeal were anything other than genuine, and advanced in a conscientious way.
  1. [19]
    The hearing of the appeal commenced on 10 October 2018. The appeal was opened by Counsel for Sincere who tendered an appeal book, comprising three volumes[5]. Volume 3 of the appeal book (exhibit 3) included the letter of 11 September 2018 notifying the change to the Council’s position.
  1. [20]
    After some initial opposition by Sincere, which was effectively withdrawn subject to the reservation of costs, I granted leave for the appeal to proceed on the basis of the amended conditions notified by the Council on 11 September 2018. Costs were reserved.
  1. [21]
    On 15 November 2018, I published the RFJ wherein I held that condition 8 of the amended suite of conditions was unlawful, and ought not, in any event, be imposed on the development approval as a matter of discretion.
  1. [22]
    This application for costs was filed by Sincere on 20 November 2018. The parties indicated they were content for the application to be heard on the papers and written submissions were filed.
  1. [23]
    Before turning to deal with the issues raised in this application, I pause to observe that Sincere’s application in pending proceeding alleges that the discretion to make an order as to costs is enlivened because the Council conducted the appeal for an improper purpose[6], and defaulted in the Court’s procedural requirements[7]. Neither of these allegations were advanced in the written submissions filed on behalf of Sincere. I have treated these allegations as having been abandoned.

Did the Council’s defence of the proceeding have reasonable prospects of success?

  1. [24]
    The starting position with respect to costs is stated in s.59 of PECA. The provision requires each party to a P&E Court proceeding to bear its own costs for the proceeding. This position is, however, subject to ss.60 and 61. These provisions confer a power on the Court to award costs where prescribed preconditions are established. Once an identified precondition is established, there is an unfettered discretion to award costs[8].
  1. [25]
    Section 60(1) of PECA is similar to s.7.6(1A) of the repealed Local Government (Planning & Environment) Act 1990. The latter was held to reflect a legislative intent to give the Court a power to award costs to compensate a party disadvantaged by ‘unmeritorious conduct’ of another party. The unmeritorious conduct that may be compensated for is particularised in the subsections of the provision[9].  One type of unmeritorious conduct common to both s.7.6(1A) of the repealed legislation, and s.60(1)(b) of PECA, is where a proceeding is considered to be ‘frivolous or vexatious’. The section in PECA states:

60 Orders for costs

(1) The P&E Court may make an order for costs for a P&E Court proceeding as it considers appropriate if a party has incurred costs in 1 or more of the following circumstances –

 

 (b) the P&E Court considers the proceeding to have been frivolous or vexatious;

   Example-

 The P&E Court considers a proceeding was started or conducted without reasonable prospects of success….

  1. [26]
    Consistent with the definition of ‘P&E Court proceeding’ in Schedule 1 of PECA, it was common ground between the parties that the power to award costs under s.60(1), including subsection (1)(b), applied to any part of a proceeding, including a defence. I accept this is correct, and have proceeded on the footing that a defence of a P&E Court proceeding, be it in whole or part, may engage s.60(1)(b) of PECA[10].
  1. [27]
    Sincere contends that the Council’s defence of the appeal was frivolous. The phrase ‘frivolous or vexatious’ as it appears in s.60(1)(b) of PECA is not defined. It is, as a consequence, to be given its ordinary meaning[11].  Williams JA in Mudie v Gainriver Pty Ltd (No.2) 2 Qd R [2003] 271 at [59] held that the words ‘frivolous or vexatious’ in s.7.6(1A) of the repealed Local Government (Planning & Environment) Court Act 1990  were used in everyday language, and there was little doubt as to their ordinary meaning. His Honour held that frivolous meant ‘of little or no value or importance, paltry’; ‘having no reasonable grounds’, and ‘lacking seriousness or sense, silly[12]. McMurdo P and Atkinson J in the same decision held that the ordinary meaning of ‘frivolous’ was ‘of little or no weight, worth or importance’, and ‘not worthy of serious notice[13]
  1. [28]
    The onus of proving frivolity lies with the applicant for costs[14]. It is a high standard to be met[15], and will turn on matters of fact and degree, including public policy considerations and the interests of justice[16].   Relevantly, something much more than lack of success needs to be shown to engage s.60(1)(b) of PECA[17].
  1. [29]
    Sincere allege that the conduct of the Council’s defence, or resistance to the appeal, was frivolous because it had no reasonable prospects of success. This allegation seeks to take up the example that follows s.60(1)(b) in PECA, which speaks of a proceeding that was started, or conducted without reasonable prospects of success.
  1. [30]
    The phrase ‘without reasonable prospects of success’ has been held to equate its meaning with ‘so lacking in merit or substance as to be not fairly arguable[18].  A case which is not fairly arguable is one that is regarded as ‘bound to fail[19]. This is a concept that falls appreciably short of ‘likely to succeed[20]. A lack of success does not mean that a proceeding had no reasonable prospects, or lacked merit[21].
  1. [31]
    To determine whether the Council’s defence was without reasonable prospects of success, it is necessary to examine the appeal by reference to two definable periods. The first period captures what occurred leading up to, and including the decision notice the subject of the appeal, and finishes on 11 September 2018. It was the letter of this date that notified the change to the Council’s position in the appeal. The second period is that which follows the letter of 11 September 2018, and finishes at the time orders were made dealing with the merits of the appeal.
  1. [32]
    Turning to the first period, the development application the subject of the appeal was code assessable. The timing of the application was such that it was to be assessed and decided under SPA. It was approved, subject to conditions, under delegated authority. The delegate granted the approval on the recommendation of an officer employed by the Council, dated April 2018. The recommendation was supported by a 19 page planning report (the planning report).
  1. [33]
    The assessment rules for the application were those prescribed by SPA, which required the application to be assessed against the applicable codes. The planning report contained an assessment of the application against the applicable codes, of which there were five, including the Low density residential zone code and the Environmental significance overlay code (the overlay code).  The assessment in the planning report concluded that the application complied with all codes, save for Performance Outcome PO15 of the overlay code.
  1. [34]
    Performance outcome PO15 was quoted in the planning report, and is in the following terms:

PO15 Priority Species

Site design provides safe koala movement opportunities by incorporating measures to maintain connectivity between areas of koala habitat on and adjacent to the site.

  1. [35]
    The planning report contains the following officer’s comments’ about PO15 of the overlay code. The comments expose the rationale behind the recommendation to impose a condition requiring the dedication, and amalgamation of lots 900 and 901:

Officer’s comment

It is understood that some vegetation clearing has occurred on the site under the provision of previous operational works approvals in 2013 associated with revived Material Change of Use approval.  A further operational works for vegetation clearing was approved in May 2017.

There are currently no existing stamped approved plans which demonstrate the intention to construct residential dwellings over any part of proposed lot 900.  The original plans for MCU 201200319 show the area of proposed lot 900 to be labelled as 'Area to retain natural state’.  Further to this, the removal of vegetation north of proposed lot 900 has reduced the available area for koalas to continue to maintain home ranges and disperse in this area, and has therefore increased the value of proposed lot 900 as one of the last opportunities for maximising linkages between meta-populations.

The applicant’s current proposal to create an additional lot for residential purposes (lot 901) at the eastern juncture of lot 900 along Arundel drive and Napper Road would directly conflict with the recommendations of the Parkwood-Coombabah Koala Population Study 2017 and the intention of maintaining fauna movement in the immediate area as well as across the broader landscape.

Performance Outcome 15 requires site design to provide safe Koala movement opportunities by incorporating measures to maintain connectivity between areas of koala habitat on, and, adjacent to the site.  Figure 15 shows the proposal at the time of lodgement, which demonstrated lot 900 encompassing what is now proposed as lot 900 and 901.  As the section of the site (the entirety of originally proposed lot 900) has been identified as critical in the safe movement and connectivity of koala populations between habitats, lot 900 and currently proposed lot 910 [sic] are recommended to be amalgamated and be transferred to Council for conservation purposes as was requested in the information request dated 25 January 2018.  Therefore, to achieve compliance with Performance Outcome 15, Officers recommend the decision to be for the creation of 67 lots, requiring amalgamation of proposed lot 900 and lot 901 and seeking the lots be transferred to Council for the purposes of conservation.

(emphasis added)

  1. [36]
    The comments set out above represent the officer’s assessment of Sincere’s development application against PO15. The assessment was the foundation for the recommendation to approve the application subject to conditions, including those conditions that were originally the subject of challenge in this appeal. The recommendation to approve subject to conditions was accepted by the delegate. The Council, up to 11 September 2018, sought to defend and maintain the conditions imposed by the delegate.
  1. [37]
    There is no evidence to suggest that the position adopted by the Council in the appeal, prior to 11 September 2018, was based on advice, or reasoning, different to that articulated in the planning report. This is problematic for the Council because, in my view, the officer’s assessment, and the subsequent recommendation based on the planning report, were misguided, and infected with error. Any defence of the appeal against the original conditions requiring dedication of lot 900 was doomed to fail, particularly if that defence proceeded on the same rationale as that was articulated in the planning report. This is so for the following reasons.
  1. [38]
    In the first instance, the officer’s assessment against PO15 of the overlay code does not recognise that lot 900 and 901 are treated differently under City Plan 2016.
  1. [39]
    Only lot 901 is mapped as having environmental significance for the purposes of the overlay code. To treat the area of lot 900 and 901 as being on equal footing under the overlay code was wrong. This is reflected in s.8.1(6) of City Plan 2016, which states:

(6) Where development is proposed on premises partly affected by an overlay, the required outcomes and assessment benchmarks for the overlay only relate to the part of the premises affected by the overlay.

  1. [40]
    The failure to acknowledge the above provision of City Plan 2016 in the planning report meant, in my view, that the officer’s assessment was flawed. The effect of the provision is to make it clear that the overlay code only applies to land that is mapped in a particular way under the overlay code. This did not apply to lot 900. This point does not mark the end of the errors that can be identified in the planning report.
  1. [41]
    Even assuming PO15 applies equally to the area of lot 900 and 901, the ordinary meaning of the provision does not require land to be dedicated to the Council for environmental purposes. Compliance with the performance outcome turns on matters of site design. In particular, the provision calls for an assessment of the design, and an evaluative judgment about the extent to which the design provides for safe koala movement opportunities. For the officer to approach PO15 of the overlay code as requiring the dedication of land that was not the subject of overlay mapping, was contrary to the ordinary meaning of this provision of City Plan 2016. This error was, in my view, significant given the requirements of performance outcome PO23 of the same overlay code.
  1. [42]
    The planning report expressly stated that the development application complied with all assessment benchmarks, save for PO15 of the overlay code. It follows from this conclusion that the officer was satisfied the application complied with PO23 of the overlay code. This performance outcome is included in a section of the code dealing with ‘Tenure, ownership and management arrangements’. It requires matters of environmental significance and associated buffers that are mapped areas on the Environmental significance – vegetation management overlay map, and proposed for retention and rehabilitation, to be suitably protected in perpetuity. Acceptable outcome AO23 provides that this requirement may be satisfied as follows:

A023

Matters of environmental significance and associated buffers, mapped areas as identified on the Environmental significance – vegetation management overlay map proposed for retention and areas requiring rehabilitation are transferred to Council ownership as Public Open Space.

  1. [43]
    In my view, PO23 and AO23 of the overlay code are directly relevant to the dedication of land for environmental purposes. Both provisions confirm, consistent with s.8.1(6), that the requirement attaches to land mapped as having environmental significance under the overlay code. The application complied with this specific requirement of the overlay code without having to dedicate lot 900. It was wrong for the officer to use PO15, in this context, to achieve indirectly that which could not be achieved directly through PO23.
  1. [44]
    Quite apart from the above, the officer’s assessment is undermined by two further matters arising out of City Plan 2016, and the nature of the assessment and decision making regime to be applied in the circumstances.
  1. [45]
    The officer’s comments and assessment did not appear to acknowledge the zoning of the land, and the impact of this zoning on the requirement to dedicate the area of lot 900. The land is included in the Low density residential zone under City Plan 2016. This zone contemplates that the area of lot 900 may be developed for low density residential purposes. The relevant zone code provides no support for the imposition of a condition calling for the dedication of lot 900 for environmental conservation purposes. The planning report failed to deal with this important point, which did not support a decision to impose a condition requiring the dedication of lot 900.
  1. [46]
    As I have already said, the application before the delegate for consideration was code assessable, and to be assessed and decided under SPA. This mode of assessment regime was tightly defined under SPA[22]. The range of relevant considerations for the assessment were identified, with particularity, in s.313 of SPA.  In terms of the planning scheme, the assessment was limited under s.313 of SPA to an assessment against the applicable codes within that document, rather than the document as a whole.
  1. [47]
    The officer’s comments identify that the assessment went beyond the tightly defined mode of assessment. The officer purported to assess the application against the Parkwood-Coombabah Koala Population Study 2017. This document does not form part of City Plan 2016. It is not an applicable code. Despite this, the officer’s comments reveal it was concluded that the proposed development would ‘directly conflict’ with the recommendations of the study. In this sense, the study was relied upon to support the material finding that the area of lot 901 had been identified as critical for the safe movement of a koala population between areas of known habitat.
  1. [48]
    Given the matters set out in paragraphs [38] to [47] above, it is my view the officer’s assessment, and recommendation to impose the impugned conditions was flawed, and infected with error. The recommendation was accepted by the delegate, having regard to the officer’s report, and was equally infected with error. The defence of the appeal against the conditions imposed by the delegate in accordance with the recommendation was doomed to fail.
  1. [49]
    There is a further feature of the background that I consider to be troubling in the context of the delegate’s decision. It was accepted by the Council that Sincere made extensive representations about the conditions imposed by the delegate requiring the amalgamation and dedication of lot 900, and 901. The material demonstrates that the representations pointed out that the 2017 study, referred to above, did not form part of the planning scheme, and should not inform the assessment. In the face of the extensive representations, the delegate wrongly maintained the original decision. This led to the filing of the appeal to this court, which was defended by the Council up to the letter of 11 September 2018.
  1. [50]
    The conditions imposed on the decision notice of 8 May 2018, in so far as they required the amalgamation and dedication of lots 900 and 901, were infected with error, and could not be supported having regard to City Plan 2016. The conditions were doomed to fail, as was any defence advanced in support of the conditions. Despite this, the Council maintained that the impugned conditions were lawful and should be imposed. This position was maintained up to and including the letter of 11 September 2018. The Council’s defence of the original conditions collapsed at this time, but not before Sincere was put to the expense of vindicating its position. Circumstances such as this comfortably engage s.60(1)(b) of the PA. It is a clear example of a defence to a proceeding being ‘of little or no weight, worth or importance’, or ‘not worthy of serious notice’. 
  1. [51]
    Mr Fynes-Clinton sought to respond to this point by submitting that the decision to impose the impugned conditions was the product of bona fide, or genuinely held views. It can be accepted that the views set out in the planning report represent the genuinely held views of the Council officer. This does not, however, cure the fact that the reasoning, and subsequent recommendation to impose the impugned conditions, were infected with error, and doomed to fail in an appeal before this Court.
  1. [52]
    The same criticisms cannot be made of the Council’s case after 11 September 2018. On this date, the Council formally notified Sincere that it intended to recalibrate its case. The impetus for the recalibration was the content of the ecologists’ joint report. The Council sensibly decided to change its position in response to that report. This was an appropriate step to take, and was consistent with the Council properly discharging its responsibilities in the proceeding[23].
  1. [53]
    The revised suite of conditions promulgated by the Council under cover of the letter of 11 September 2018 did not seek to maintain a requirement to dedicate lot 900. Rather, it sought to impose restrictions on future development that may occur on lot 900 in accordance with the Low density residential zoning. The restrictions proposed for future development were identified at paragraph [7] of the RFJ. In support of these restrictions on future development, the Council relied upon two Performance outcomes of the overlay code, namely PO15 and PO21. I considered each of these Performance outcomes in the RFJ.
  1. [54]
    The Council’s case did not involve an assertion that the area of lot 900 was of particular environmental importance in its own right. It accepted the land was not mapped under the overlay code. Rather, the Council’s case emphasised that the area of lot 900 was surrounded by land mapped under the overlay code. Further, it emphasised the requirements of PO15 of the overlay code, which is set out in paragraph [34] above, and required consideration to be given to the connection (from a habitat perspective) of the site with adjacent mapped areas. The Council contended that PO15 required a connection to be provided through lot 900 to facilitate koala connectivity to, and from, known and mapped areas of koala habitat.
  1. [55]
    The success of the Council’s amended case, in my view, turned upon a qualitative assessment of the proposal, and the surrounding circumstances against Performance outcomes PO15 and PO21 of the overlay code. The assessment involved an evaluative judgment that was not empirical, and lent itself to a range of outcomes about which reasonable minds may differ. The Council’s case was supported by the evidence of Dr Phillips.
  1. [56]
    Having regard to the RFJ, the Council’s amended case can be fairly characterised as weak, but I am far from persuaded that it was bound to fail, or lacking in merit or substance. In my view, the Council’s case at trial: (1) was narrow and focussed; (2) was supported by relevant and considered expert evidence; (3) was advanced in reliance upon two provisions of City Plan 2016 said to support the imposition of the amended conditions; and (4) was advanced in reliance upon two provisions of City Plan 2016 that called for a qualitative assessment of the proposal. Despite the Council’s case being weak, and unsuccessful, the combination of the above features satisfy me that the Council’s defence of the amended conditions falls well short of being ‘bound to fail’, or frivolous or vexatious.
  1. [57]
    Sincere criticises the Council’s amended case for a number of reasons. It submits the Council ignored a range of considerations, including: (1) the Low density residential zoning of the land; (2) relevant context; (3) that lot 901 was proposed to be dedicated for environmental conservation purposes; and (4) s.8.1(6) of City Plan 2016.
  1. [58]
    I do not accept that the Council ignored the range of considerations urged upon the Court by Sincere. To the contrary, a number of these matters were expressly referred to in the ecologists’ joint expert report, and were the subject of the Council’s written and oral submissions at trial.
  1. [59]
    The submissions filed on behalf of Sincere also seek to criticise the Council for its reliance in the appeal upon the 2017 study referred to earlier. It was submitted, in effect, that the Council’s case impermissibly invited the Court to assess the application against the study. This is a fair criticism of the planning report, but it is not a fair criticism of the Council’s case, nor of the evidence of Dr Phillips. I reject Sincere’s submission. The true position is that Dr Phillips relied upon the study to form his opinion about the presence, and movement, of koalas in the local landscape. He did not ‘assess’ the application against the study like the earlier planning report had done.  The study was tendered in this context at trial, without objection. It was relevant in this context. It is wrong to submit that the Council sought to rely on the document for any other purpose.
  1. [60]
    In the result, I am satisfied that part of the Council’s defence of the proceeding engages s.60(1)(b) of PECA. It is limited to that period commencing from the filing of the notice of appeal, up to and including 11 September 2018.

Did the Council introduce new material?

  1. [61]
    Section 60(1)(e) of PECA confers a discretion on the Court to make an order as to costs where a party has introduced, or sought to introduce, new material. Sincere contends the Council introduced new material in the appeal by seeking leave to amend the issues in dispute on the first day of the trial. The point made on behalf of Sincere is that the Council introduced new material when it abandoned the impugned conditions in the decision notice of 5 May 2018, and adopted the revised conditions set out in the letter of 11 September 2018.
  1. [62]
    The parties adopted different positions as to whether ‘new material’ in s.60(1)(e) of PECA included the notification of new issues in dispute.
  1. [63]
    Sincere contends that ‘new material’ can include the notification of new issues. This contention was no more than a bald assertion. Mr Skoien, who prepared the written submissions on behalf of Sincere, did not refer to any authorities in support of the submission.
  1. [64]
    The Council rejected any suggestion that it introduced new material in the appeal for the purposes of s.60(1)(e) of PECA. Mr Fynes-Clinton submitted that ‘new material’, for the purposes of s.60(1)(e), did not include the identification of new issues. He submitted that the intention of the provision was to capture the introduction, or attempted introduction, of new evidence that calls for a new evidentiary response by the other party, or otherwise requires the other party to respond to a materially altered case against it. No authority was cited for this submission.
  1. [65]
    There are decisions of this Court that support the submissions made by both parties in this appeal. In Jeteld Pty Ltd v Toowoomba City Council [2010] QPELR 19, Judge Robin QC was ‘comfortably persuaded’ that an amendment to a notice of appeal resulting in the introduction of new issues fell within s.4.1.23(1)(f) of the Integrated Planning Act 1997. This statutory provision is identical to s.60(1)(e) of PECA. By way of contrast, Judge Rackemann in M2 Property Group v Gold Coast City Council [2006] QPELR 332 did not accept that the making of a submission about a new jurisdictional issue (in written submissions) constituted ‘new material’ for the same legislative provision considered by Judge Robin QC in Jeteld.
  1. [66]
    The phrase ‘new material’ is not defined in PECA, nor does the immediate statutory context suggest it has a meaning other than its ordinary meaning. The plain meaning of ‘new’ is well understood. The Macquarie dictionary defines ‘new’ as ‘of recent origin or production’, ‘appearing for the first time’ and ‘only now come into knowledge’. The meaning of ‘material’ is not as clear. The Macquarie dictionary defines ‘material’ as ‘Law (of evidence etc.) likely to influence the determination of a cause’.  This definition goes some way to identifying the ordinary meaning of ‘material’. This however needs to be supplemented by reference to matters of Court practice.
  1. [67]
    As a matter of Court practice, the meaning of ‘material’ is well understood. This can be illustrated by way of example. A party to an application before the Court will read the ‘material’ it relies upon. The material may include originating processes, orders of the Court, affidavits and written submissions. In this context, the ‘material’ includes the evidence that is to be relied upon, but is not limited to evidence. It includes all of the documents that are relied upon by a party to ‘influence the determination of a cause’. Accordingly, in my view, the phrase ‘new material’ for the purposes of s.60(1)(e) of PECA is to be given an expansive meaning. It captures the documents that may be read as material before the Court, and is not limited to evidence[24]. The statutory context does not suggest otherwise.
  1. [68]
    This approach is consistent with that taken by the Court in Jeteld Pty Ltd v Toowoomba City Council [2009] QPEC 83. In that case, Judge Robin QC considered the meaning of s.4.1.23(1)(f) of the Integrated Planning Act 1997 and, in substance, held that the ‘introduction of new material’ should be treated as a reference to the production of new material for consideration by the Court in its process of reaching a decision. He held that material was not limited to evidence.  This proposition equally applies to s.60(1)(e) of PECA as it accords with the ordinary meaning of the provision.
  1. [69]
    Further, it should be noted for completeness that the drafters of PECA have used the term ‘material’ in s.60(1)(e) in circumstances where the word ‘evidence’ is also used throughout the Act.  For example, the word ‘evidence’ appears in the heading to Part 5, Division 2 of PECA as well as ss.53, 55 and 57.  This, in my view, suggests the legislation is to be construed as if it treats evidence, and material, as different concepts. The submissions made on behalf of the Council did not give sufficient recognition to this difference in language.
  1. [70]
    Turning then to the issue in dispute, the question to be examined is this: did the Council introduce new material for consideration by the Court in its process of reaching a decision? The answer to this question is in the affirmative. The new material introduced by the Council was an order of the Court dated 17 October 2018. The content of the order is set out in exhibit 13, which states:

The Respondent be granted leave to change the issues in dispute in the proceeding by the adoption of the Respondent’s proposed conditions of approval numbered 8, 9, 10a., 10b., 11c. and 13b.iii., as set out in the enclosure to the letter from Norton Rose Fulbright dated 11 September 2018, to replace the conditions disputed by the Appellant in paragraphs 8 to 12 of the Notice of Appeal…

  1. [71]
    The order of 17 October 2018 permitted the Council to introduce new issues for determination. The order was made on the second day of the hearing, and the Council relied on it as ‘material’ in its case. Reliance upon the order was critical for the Council because, absent the order, Sincere could establish that it was entitled to the final relief set out in the prayer for relief in the Amended notice of appeal[25].
  1. [72]
    I am therefore satisfied that the Council introduced new material for the purposes of s.60(1)(e) of PECA. The new material comprises the order of 17 October 2018.

Was it unreasonable for the Council to reject offers to settle the appeal?

  1. [73]
    In support of its application for costs, Sincere submits that the Council unreasonably rejected two offers to settle the appeal. The offers are said to have been made in correspondence dated 13 and 25 September 2018. The offers were not accepted by the Council. It is contended that it was unreasonable for the Council not to accept the offers ‘given the decision of the Court’.
  1. [74]
    The letter of 13 September 2018 is marked “Without Prejudice Save as to Costs”. At the risk of repetition, it states, in part:

Apart from the registration of an easement to facilitate access to Lot 901 and provision of koala friendly fencing on the southern part of Lot 900 to enable a potential connectivity opportunity across Arundel Drive which our client is willing to agree, revised conditions 8 to 13 as attached to your above correspondence are not acceptable to our client and on their face contravene section 345(1) of SPA as neither relevant to or an unreasonable imposition on or not reasonably required in relation to development of our client’s land.

Accordingly, we confirm that the without prejudice meeting shall proceed as scheduled on 17 September 2018 and individual expert reports and lay witness statements are due for exchange by 14 September 2018 pursuant to the Order made 27 June 2018.

  1. [75]
    I am not persuaded that the letter of 13 September 2018, in its terms, made an offer to settle the appeal.
  1. [76]
    The letter identified, in broad terms, the basis upon which Sincere was prepared to resolve the appeal, but it also confirmed that a without prejudice conference should proceed, followed by an exchange of reports. There was no offer for the Council to accept in the letter of 13 September 2018. At best, the letter was an intimation of what may be accepted by Sincere if the Council was to make an offer to resolve the appeal. This is, in my view, is reinforced when the terms of the letter are contrasted with Sincere’s offer to settle, dated 25 September 2018.
  1. [77]
    The letter of 25 September 2018 is marked “Without prejudice save as to costs”.  The offer made to resolve the appeal in this letter is set out, in part, at paragraph [15] above. Sincere offered to resolve the appeal on the basis of the amended suite of conditions attached to the letter. This is in stark contrast to the letter of 13 September 2018. No suite of conditions were attached to the letter of 13 September 2018.
  1. [78]
    The amended suite of conditions attached to the letter of 25 September 2018 make clear the basis upon which Sincere was prepared to resolve the appeal. This involved granting an easement through Lot 900 to allow Council, and the public, access to Lot 901. In addition, condition 8 was amended to require the provision of koala friendly fencing along the southern boundary of Lot 900 parallel to the Napper Road frontage.
  1. [79]
    The offer made by Sincere on 25 September 2018 was open for acceptance until 4.00pm on Friday, 28 September 2018. The Council did not accept the offer prior to its expiration.
  1. [80]
    I am not satisfied it was unreasonable for the Council to allow the offer of 25 September 2018 to expire. This is so for three reasons.
  1. [81]
    First, there is no evidence to establish that the Council ignored the offer to settle, or failed to give it proper consideration.
  1. [82]
    Second, there is no evidence to suggest the Council, in allowing the offer to expire, acted contrary to the advice of its legal team, or expert witness. It was unlikely the offer expired contrary to the advice of the Council’s expert Dr Phillips. Paragraph 14 of his statement of evidence before the Court said:

I have seen and considered the consent conditions which Council now propose for Lot 900 in response to the JER. In my opinion, these consent conditions are the minimum that I would consider to be required in order for the subject site to maintain its current utility for koalas…” (emphasis added)

  1. [83]
    Third, Sincere seeks to characterise the decision to reject the offer to settle as unreasonable ‘given the decision of this Court’. This contention has some superficial attraction, but invites the Court to approach the matter from the wrong direction. A decision to accept, or reject an offer is not made with the benefit of the final judgment, and supporting reasons.  They are assessed by a party having regard to the facts known to it at the time the offer is considered. Often, as was the case here, the outcome of a proceeding turns on matters of fact, and degree. It may also turn on whether the Court prefers the evidence of one expert over another in circumstances where the evidence is directed to matters of judgment, about which reasonable minds may differ.
  1. [84]
    The information available to assess the offer at 4pm on 28 September 2018 included the advice of the Council’s expert, Dr Phillips. His report to this Court in the appeal makes it clear that he considered the Council’s amended conditions represented the minimum appropriate in the circumstances. In addition to this, the Council would have been aware that the outcome of the case turned on an assessment of the development against two Performance outcomes in the overlay code. The Performance outcomes call for an evaluative judgment about which minds may differ.  In this context, I am far from persuaded the Council’s decision to allow the offer to expire was unreasonable.
  1. [85]
    It was further submitted on behalf of Sincere that the RFJ demonstrates that the Council’s support for the amended conditions, and rejection of two offers to settle was based upon: (1) fundamental errors in understanding City Plan 2016; and (2) reliance upon the 2017 Koala Study, which was irrelevant and unreliable.
  1. [86]
    Whilst I have some misgivings about the Council’s application of the overlay Code in this case (in the light of s.8.1(6) of City Plan 2016), I do not consider the advancement of the amended suite of conditions was based on fundamental errors in the understanding of City Plan. The Council’s case was a simple one: it contended that lot 900 provided connectivity for koalas in the local landscape and, as a consequence, future development on that lot should be constrained.
  1. [87]
    The Council relied upon PO15 of the Environmental significance overlay code to support its position, which called for an examination of the site design and whether that design facilitates koala movements on the site, and to adjacent areas. The Council effectively contended that Lot 900 was adjacent to land identified as koala habitat, and would maintain a known, and important connection. This position was supported by expert opinion. That opinion assumed lot 900 was already used by koalas for the very movements the conditions were directed at facilitating. At face value, the Council’s position was not one that called for it to reject Dr Phillips’ evidence, or capitulate in the appeal.
  1. [88]
    The second aspect of the submission made by Sincere is somewhat troubling. It contends the 2017 Koala Study was irrelevant. This is in circumstances where the document was tendered during the appeal by the Council, without objection.
  1. [89]
    In any event, the submission made on behalf of Sincere proceeds on a misapprehension. It submitted the study was irrelevant because it was not an ‘assessment benchmark’ for the application. This is true, but the document was not relied upon by the Council in the appeal as such. The document was relied upon to inform Dr Phillips’ views about the presence of koalas in the local area. As I have already said, in this context, the document was relevant. It was legitimate for the Council, and Dr Phillips, to refer to it. Whilst the study was not persuasive in the determination of the merits appeal, I am not persuaded that it was ‘unreliable’.
  1. [90]
    On balance, I am not satisfied that the Council unreasonably rejected offers to settle the appeal.

Did the Council fail to discharge its responsibilities in the proceeding?

  1. [91]
    Section 60(1)(i) of PECA confers a power on the Court to award costs where it is satisfied that, inter alia, an assessment manager has not properly discharged its responsibilities in the proceeding. PECA does not define a party’s ‘responsibilities’ in a proceeding.
  1. [92]
    This Court has held, in the context of s.4.1.23(1)(i) of IPA, that a party’s ‘responsibilities’ in a proceeding are those responsibilities imposed on it by the Act that governs the proceeding[26]. This proposition, in my view, equally applies to s.60(1)(i) of PECA. The Acts that govern proceedings in this Court will include the PA, and PECA.
  1. [93]
    Sincere contends that s.60(1)(i) of PECA is engaged in the circumstances of this case. The reasons advanced in support of this contention are contained in paragraphs 2.25 and 2.26 of the primary submissions filed on its behalf. Paragraphs 2.25 and 2.26 state:

“2.25 It is submitted that Council’s responsibilities in the Appeal (for the purposes of section 60(1)(i) of the PA) included an obligation to properly assess the merits of Council’s case. It is submitted that a local government (as assessment manager) will fail to properly discharge those responsibilities if it fails to conduct that assessment or fails to acknowledge the clear deficiencies in its case. This is particularly so where that case is inconsistent with provisions, and clear planning decisions, in that local government’s own planning documents and/or where the local government bears the onus of proof.

2.26 The Appellant submits that proof of failure by a local government (as assessment manager) to properly discharge its obligations in the proceeding is not dependant upon proof that there was no merit in the local government’s case. It is submitted that that failure can arise in circumstances where, as here, a local government ought to have realised the limitations in its case and acted reasonably to withdraw its opposition to the appeal.”

  1. [94]
    The submission set out above strikes two immediate difficulties: (1) the submission does not identify the statutory provision/s of PECA, or the PA, that require ‘a council to properly assess the merits of its case’ or ‘to acknowledge the clear deficiencies in its case’; and (2) the submission is not supported by authority.
  1. [95]
    There is authority for the contrary position. In Shaw v Brisbane City Council & Anor [2000] QPELR 57 (Shaw), Judge Quirk rejected an argument similar to that advanced by Sincere. At page 58 of the judgment his Honour said:

As to sub-paragraph (i), the argument appears to be that “responsibilities in the proceedings” includes an obligation to recognise any weaknesses in one’s case and to respond accordingly to that recognition by not pursuing the matter further if that is warranted. Such a proposition would in my view involve too wide an interpretation of the concept of “responsibilities” as it is used in the sub-paragraph.

The proposition may reflect the position of a party in ordinary civil litigation but here, the concept must be understood in the context of this legislation. I would interpret the provision to refer to responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved (in those capacities) in proceedings which the Act governs. Such an interpretation would not extend to cover the proposition put forward here.” (emphasis added)

  1. [96]
    In its reply, Sincere submitted the Court ought not follow Shaw. Rather, the Court was invited to adopt a less narrow construction of s.60(1)(i) of PECA. It was submitted the provision is capable of capturing circumstances where an assessment manager generally conducts itself in the proceeding in a fashion that is unreasonable, being a standard lower than what is expected of a model litigant.
  1. [97]
    In support of this submission, Mr Skoien’s written submissions made reference to the Explanatory Notes for the Integrated Planning Bill 1997. In particular, it was pointed out that the Explanatory Notes for s.4.1.23(1)(i) of IPA gave an example of the type of conduct that results in a party failing to properly discharge it responsibilities in  a proceeding. The example given in the Explanatory Notes for the 1997 Bill state:

For example, an assessment manager may take an active part in proceedings, but present evidence that is poorly researched or not relevant to the issue at appeal.

  1. [98]
    It was further pointed out that the example given in Explanatory Notes for the 1997 Bill was repeated in the Explanatory Notes for s.457(2)(i) of SPA. A similar example is also provided in the Explanatory Notes for the Planning & Environment Bill 2015, save that it speaks of a ‘party’ rather than an ‘assessment manager’.
  1. [99]
    I was not persuaded that it was appropriate for the meaning of s.60(1)(i) of PECA to be considered in consultation with the Explanatory Notes for the 1997, 2009 and 2015 Bills. No authority was cited in support of the proposition that it is legitimate to construe s.60(1)(i) of PECA, or confirms its meaning, by reference to extrinsic material applying to different repealed legislation. Further, it was not established how s.14B of the Acts Interpretation Act 1954 was engaged, thereby permitting s.60(1)(i) of PECA to be construed having regard to the Explanatory Notes for the 2015 Bill.
  1. [100]
    In my view, s.60(1)(i) of PECA should be construed as referring to a responsibility that arises from an obligation imposed on the named parties to do what PECA, and PA, require of them when involved in litigation before this Court. This is consistent with the decision in Shaw. As to whether the balance of the reasoning in Shaw should be followed, it is my view that this reasoning has been overtaken by a change in the legislation. At the time Shaw was decided, IPA did not include a provision similar to s.10(2) of PECA. This provision states:

(2) The parties to a P&E Court proceeding impliedly undertake to the court and each other to proceed in an expeditious way.

  1. [101]
    Section 10(2) of PECA imposes a responsibility on all parties to a proceeding for the purposes of s.60(1)(i) of PECA. The requirement is an implied undertaking to proceed in an expeditious way. As to what this requires, Judge Robin QC in Chief Executive, Department of Transport and Main Roads v Club Cavill Pty Ltd (No.2) [2012] QPELR 90 at 92 – 93 said:

“Expeditious”, in my view, does not simply mean quick or speedy, but rather, in this context, according to definitions my associate has located, “done quickly and efficiently” (Collins English Dictionary), “efficient and speedy” (Webster’s New World College Dictionary), “marked by or acting with prompt efficiency” (Meriam–Webster.com) “quick and effective” (Macmillan) or “acting or done with speed and efficiency” (The American Heritage Dictionary of the English Language)…” (emphasis added)

  1. [102]
    I agree with his Honour’s analysis as to the meaning of ‘expeditious’ in the context of the implied undertaking. Further, I would supplement his Honour’s reasoning by adding that s.10(2) of PECA expressly recognises that parties to a P&E Court proceeding impliedly undertake to the Court, and each other, to proceed in a way which involves the litigation of only the real issues in dispute without undue delay, expense and technicality[27]. In this way, litigation would proceed, in my view, in an expeditious way.
  1. [103]
    Compliance with s.10(2) of PECA will require a local authority, such as the Council in this appeal, to properly assess the merits of its case and ‘properly acknowledge and address, shortcomings in its case’, where appropriate. The assessment is not fixed in time. It is an assessment that ought be carried out at a number of stages of the litigation, and be responsive to new material that comes to light. The requirement under s.10(2) of PECA does not, however, require a party to capitulate at the first sign its case may not succeed. 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.
  1. [104]
    Having regard to the background to this appeal, I am not satisfied it has been demonstrated that the Council failed to comply with s.10(2) of PECA in the manner contended in paragraphs 2.25 and 2.26 of Sincere’s primary submissions.
  1. [105]
    It is clear from the history of this appeal that the Council reviewed its case after the completion of the ecologists’ joint report, and altered its position in the appeal in response to that report. The response was appropriate in that it abandoned a defence that was doomed to fail. This change in position occurred efficiently, and in a timely way. A short period of time was taken to consider the joint report and, I infer, to obtain advice from Dr Phillips. There is nothing about this conduct that was improper, unreasonable, or would otherwise justify an order for costs. To the contrary, the Council’s timely change in position is what is expected of an assessment manager named as a party to an appeal to this Court.
  1. [106]
    The submission made at paragraph 58 of the Council’s written submissions aptly identifies the proposition underlying Sincere’s contention that s.60(1)(i) of PECA is engaged. Paragraph 58 states:

58. The proposition that the Respondent ought pay costs on and after 13 September 2018 really comes down to a proposition that the Respondent ought to have rejected the advice of its expert and “capitulated” accordingly. While the Court ultimately preferred the evidence of Dr Watson over that of Dr Phillips, the court described Dr Phillips’ evidence (appropriately, with respect) as “the product of careful and considered analysis.

  1. [107]
    Sincere have not persuaded me that the Council should have rejected the advice of Dr Phillips, and capitulated. He is an expert in his field. His evidence was based on a study in which he had been personally involved. The opinions expressed by him were honest, and genuinely held opinions. Those opinions were articulated in clear terms. To suggest the Council’s implied undertaking under s.10(2) of PECA required it to reject opinion evidence in these circumstances is, in my view, a step too far.
  1. [108]
    I am not satisfied that s.60(1)(i) of PECA is engaged in the circumstances of this case.

Should a costs order be made?

  1. [109]
    For the reasons dealt with above, I am satisfied Sincere has demonstrated that ss.60(1)(b) and (e) of PECA are engaged. It does not however follow that a costs order will be made. There remains an unfettered discretion to make such an order.
  1. [110]
    Having regard to the matters traversed in paragraphs [24] to [108] above, the exercise of the discretion is finely balanced. On the one hand, the Council’s case prior to 11 September 2018 was bound to fail. Its defence of the original conditions the subject of appeal was, as I have already said, frivolous for the purposes of s.60(1)(b) of PECA.
  1. [111]
    As against this, the Council’s case post 11 September 2018 was conducted in a way that is consistent with that expected of an assessment manager named as a respondent to an appeal. It kept its position under review, and adjusted that position to reflect new information, and advice it had received.
  1. [112]
    On balance, I am persuaded that the discretion should be exercised in Sincere’s favour. This is because, in my view, this was a case with two distinct parts. The first part involved the Council defending a decision notice in circumstances where that defence was bound to fail. The second part of the case however reflects an approach by the Council to litigation which was not improper, unreasonable or otherwise justifies an order for costs.
  1. [113]
    The change in the Council’s case is to be commended, but that change was not sufficient to avoid an order as to costs. This does not mean Sincere is entitled to all of its costs. The costs order I intend to make shall be limited to that part of the appeal from its commencement, up to and including the letter of 11 September 2018. Given what I have said in paragraph [7] above, the costs should exclude Sincere’s costs of preparing, filing and serving the Amended notice of appeal.
  1. [114]
    The costs will also include the costs of this application.
  1. [115]
    As I have already said, the Council’s decision to change its position in the appeal did result in the introduction of new material. I am not however persuaded in the exercise of the discretion that this feature of the case warrants an order as to costs over and above the costs identified in paragraph [113] and [114]. The order of 17 October 2018 was, in practical terms, made to formalise the issues in the appeal. Notice of Council’s amended position was given well in advance of the hearing. It was clear both parties prepared for the hearing on the basis of the amended conditions package. These features represent strong grounds that militate against the exercise of the discretion to make an order as to costs about this feature of the appeal.
  1. [116]
    For completeness, an issue was raised obliquely by Sincere with respect to the adequacy of the Council’s disclosure. This failure was relied upon as a matter relevant to the exercise of the discretion. The issue relates to the manner in which Council disclosed the 2017 study. I have given this matter consideration. It does not weigh heavily in the exercise of the discretion, one way or the other. Even assuming the matter is resolved completely in Sincere’s favour, it is not a factor that changes the manner in which I have determined to exercise the costs discretion.

Assessment of costs

  1. [117]
    One issue remains for determination, namely whether the order as to costs should be assessed on the standard, or indemnity basis.
  1. [118]
    Sincere submitted that the costs should be assessed on the standard basis, save for those costs incurred by it on, and from, 13 or 25 September 2018. It invites the Court to order that those costs be assessed on the indemnity basis.
  1. [119]
    It is unnecessary for me to decide this point. I was not persuaded that an order should be made for costs incurred after 11 September 2018, save for the costs of this application. The costs are to be assessed on the standard basis.

Conclusion

  1. [120]
    I am satisfied that the power to make an order as to costs under s.60(1) of PECA is enlivened, and it is appropriate that the discretion should be exercised to make such an order.
  1. [121]
    The orders of the Court will be:
  1. The Respondent pay the Appellant’s costs of the proceeding up to and including 11 September 2018.
  1. The Respondent pay the Appellant’s costs of this application.
  1. The costs the subject of paragraph 1 exclude the Appellant’s costs of preparing, filing and serving the Amended notice of appeal filed on 18 June 2018.
  1. The costs the subject of paragraphs 1 and 2 be assessed on the standard basis.

Footnotes

[1]  “the P&E Court considers the proceeding to have been frivolous or vexatious”.

[2]  “a party has introduced, or sought to introduce, new material”.

[3]  “an…assessment manager…does not properly discharge its responsibilities in the proceeding”.

[4]  Under s.229 and Schedule 1 of the PA, as an appeal against a ‘provision of a development approval’.

[5]  Exhibits 1, 2 and 3.

[6]  Court document 10, paragraph 15(e).

[7]  Court document 10, paragraph 15(g).

[8] cf Mudie v Gainriver Pty Ltd (No.2) [2003] Qd R 271 at 285 [42] per McMurdo P and Atkinson J.

[9]  Ibid at 282-283 [30] per McMurdo P and Atkinson J.

[10]  Which is supported by Mudie v Gainriver Pty Ltd (No.2) [2003] Qd R 271 at 284 [40] per McMurdo P and Atkinson J and Gold Coast City Council v Metrostar Pty Ltd & Ors [2004] QPEC 029 at [13].

[11] Mudie v Gainriver Pty Ltd (No.2) [2003] Qd R 271 at 283-284 [35] per McMurdo P and Atkinson J.

[12]  At p.291, paragraph [59] of the reasons.

[13]  At p.284, paragraph [35] of the reasons.

[14] Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15 at [11].

[15] Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd & Anor [2004] QPEC 028 at [14].

[16] Mudie v Gainriver Pty Ltd (No.2) 2 Qd R [2003] 271 at 284 [37] per McMurdo P and Atkinson J.

[17]  Ibid at 284 [36] and [40] per McMurdo P and Atkinson J.

[18] DeGiorgio v Dunn (No.2) (2005) 62 NSWLR 284 at 293 [28].

[19] cf Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at 689 [24] per Davies JA.

[20]DeGiorgio v Dunn (No.2) (2005) 62 NSWLR 284 at 293 [28].

[21] Ferreyra & Ors v Brisbane City Council (No.2) [2016] QPEC 13 at [11].

[22]  Analogous to the mode of assessment under IPA discussed in Emerald Developments (Aust) Pty ltd  v Minister for Environment, Local Government, Planning & Women [2006] QPELR 714 at 717 [22] per de Jersey CJ.

[23]  Consistent with Altitude Corporation Pty Ltd v Isaac Regional Council (No.2) [2015] QPELR 139 at 145 [24] (iii).

[24] cf Jeteld Pty Ltd v Toowoomba City Council [2009] QPEC 83.

[25]  RFJ [36].

[26] Shaw v Brisbane City Council & Anor [2000] QPELR 57 at 58 Line J; Lali Investments Pty Ltd v Burnett Shire Council [2006] QPELR 642 at 644 [19].

[27] Ko v Brisbane City Council & Anor (No.2) [2018] QPEC 49 at [42].

Close

Editorial Notes

  • Published Case Name:

    Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2)

  • Shortened Case Name:

    Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2)

  • MNC:

    [2019] QPEC 9

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    22 Mar 2019

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