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- Unreported Judgment
Serratore v Noosa Shire Council (No.2) QPEC 46
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Serratore & Ors v Noosa Shire Council (No.2)  QPEC 46
GIUSEPPE SERRATORE, TERESA SERRATORE, ANTONIO SERRATORE, CARMELA SERRATORE, MICHELA SERRATORE, PRISCILLA SERRATORE AND FRANK SERRATORE (BY HIS LITIGATION GUARDIANS CARMELA SERRATORE AND ANTONIO SERRATORE)
NOOSA SHIRE COUNCIL
1781 of 2019
Planning and Environment Court
Application for costs
Planning and Environment Court of Queensland, Brisbane
10 September 2021
10 September 2021
Williamson QC DCJ
The amended application in pending proceeding filed 10 June 2021 is dismissed.
PLANNING AND ENVIRONMENT – APPEAL – COSTS – where each appellant given an enforcement notice under s 168 of the Planning Act 2016 in relation to vegetation clearing – appeal against decision to give the enforcement notices – where appeal allowed and enforcement notices set aside – where declarations and consequential orders made – whether Council’s case against the second, fifth, sixth and seventh appellants was without reasonable prospects of success, or alternatively, frivolous or vexatious – whether Council failed to properly discharge its responsibilities in the proceeding.
Planning Act 2016, s 168
Planning & Environment Court Act 2016, ss 59, 60 and 61
K Wylie for the applicants/appellants
A Skoien for the respondent
Mullins lawyers for the applicants/appellants
Heiner Doyle solicitors for the respondent
- By their amended application in pending proceeding filed on 10 June 2021, the second, fifth, sixth and seventh appellants (the applicants) seek an order for part of their costs of the proceeding under s 60 of the Planning & Environment Court Act 2016 (the Act).
- The application is opposed by Council.
- By way of relevant background, this is an appeal against a decision to give an enforcement notice to each appellant under s 168 of the Planning Act 2016. Subsection (1) of this provision states:
“168 Enforcement notices
(1) If an enforcement authority reasonably believes a person has committed, or is committing, a development offence, the authority may give an enforcement notice to -
(a) the person; and
(b) if the offence involves premises and the person is not the owner of the premises – the owner of the premises.”
- As the reasons for judgment published on 9 April 2021 (RFJ) explain, the notices issued by Council, who was the enforcement authority, are in identical terms. They state the decision maker held a belief that each recipient had committed, or was committing, a development offence on land formally described as Lot 1 on RP 205063. It was alleged in each notice that assessable development, namely vegetation clearing, had been, or was being, carried out on the land in the absence of an effective development permit. Given each of the appellants are joint owners of the land, and were each alleged to have committed, or be committing, a development offence, it can be inferred the notices were issued under s 168(1)(a) of the Planning Act 2016.
- The Notice of appeal filed on behalf of all of the appellants articulated the grounds relied upon to contend each notice should be set aside. That document was amended on a number of occasions. The final iteration was filed on 9 March 2020. It is described as the ‘Second Further Amended Notice of Appeal’. The grounds of appeal articulated put in issue: (1) whether a development offence had been committed; (2) whether the enforcement notices issued were defective for want of form; (3) whether there were discretionary matters militating against granting varied enforcement notices; and (4) whether revegetation of the land was required to make good for the loss of vegetation cleared.
- The matter proceeded to trial on affidavit material filed in advance of the hearing. One of the affidavits relied upon in the substantive hearing was read for the purpose of this application, namely that of the fourth appellant, Ms Carmela Serratore (Court document No.39).
- Ms Serratore’s affidavit was filed on 12 June 2020. The substance of the affidavit explains when, and why, vegetation was cleared on the land. It also explains the role the first, third and fourth appellants played in the clearing activities. Personal circumstances particular to the second and seventh appellants where also identified in the affidavit. Those circumstances would later be relied upon to distance those appellants from any direct, or indirect, involvement in the clearing activities.
- The trial was listed for hearing in late September 2020. The hearing was four days in duration. The appellants shared common legal representation. Deponents of affidavits relied upon were made available for cross-examination. This included Ms Serratore and Mr Antonio Serratore. They were both cross-examined by Mr Skoien who explored when the clearing occurred, and who was responsible for it. The cross-examination confirmed: (1) the clearing work had been undertaken by a contractor; and (2) only Ms Serratore, along with her father and brother Antonio, were involved with the making of decisions, and the giving of directions about the extent of vegetation cleared on the land.
- Up to the point of final submissions, Council maintained that a development offence had been committed on the land (albeit not as extensive as the offence alleged in each notice), and varied enforcement notices should, as a consequence, be issued to all of the appellants. In support of this position, notice was given to the appellants’ solicitor of the variations contended for. This notice was first provided in correspondence dated 18 September 2020, being the eve of trial. A further notice was given during the trial, which was admitted and marked exhibit 6. The variation notified therein did not alter Council’s position. It maintained that a notice should be given to each of the appellants.
- After completing oral evidence, the trial was adjourned to enable counsel to finalise written submissions. Submissions were exchanged the morning of final addresses. The written submissions prepared on behalf of Council made it clear that it was accepted the appeal should be allowed and varied enforcement notices issued to some of the appellants. In this regard, the submissions contained the following concession:
“Concessions made by the Respondent in the Appeal
3.10 Consistent with its obligations as a model litigant, the Respondent has made concessions in the Appeal, in light of amendments of the Notice of Appeal, the effluxion of time and the evidence adduced in the proceeding, namely:
(g) in light of the evidence of Ms Serratore and Mr Serratore, and the evidence of Mr Kaukiainen, the Respondent does not press for any enforcement notice to issue against any of the Appellants other than…[the first, third and fourth appellants].”
- The primary case advanced in the written submissions prepared on behalf of the appellants was that no enforcement notices should be issued because a development offence had not been committed. This case was founded on the proposition that the vegetation clearing was not assessable development having regard to Council’s planning scheme.
- It was also submitted the evidence did not establish, to the requisite standard, that the applicants had committed a development offence in any event.
- On 9 April 2021, I published the RFJ. At paragraph , the disputed issues to be determined were identified as follows:
“1. The enforcement notices given to…[the applicants] should be set aside as there is no evidence to establish they are responsible for, or had control over, the vegetation clearing;
2. The enforcement notices do not comply with ss 168(3)(a) and (c) of the PA and, as a consequence, are defective and should be set aside;
3. The impugned vegetation clearing does not constitute assessable development and, as a consequence, a development offence has not been committed to engage s 168(1) of the PA; and
4. There are discretionary considerations that militate against a decision to give varied enforcement notices to correct identified defects.”
- The first issue was decided in the appellants’ favour. In this regard, paragraphs  and  of the RFJ state:
“ The evidence does not establish, to the requisite standard, that …[the applicants]…committed the development offence alleged in the enforcement notices. This was properly, and correctly, conceded by Mr Skoien.
 The absence of evidence as against these four recipients of an enforcement notice means the first ground of challenge identified in paragraph  succeeds. The appeal will therefore be allowed, and the enforcement notices issued to…[the applicants]…set aside on this basis.”
- The second issue was decided in the appellants’ favour.
- The appellants’ case in relation to the third issue, which represented the major area of controversy between the parties, was unsuccessful.
- It was unnecessary to determine the fourth issue.
- At paragraph  of the RFJ, it is said the appeal would be allowed and the enforcement notices given to each appellant set aside. In anticipation of this outcome, Council invited me to make orders varying the enforcement notices, or alternatively, remit the matter to allow new enforcement notices to be issued consistent with the Court’s reasons. In paragraph  of the RFJ, I gave reasons for declining to adopt either course. In paragraph  I invited further submissions as to the final orders that ought be made in such circumstances. These paragraphs of the RFJ state:
“ I am not persuaded either course is appropriate here given: (1) the extent to which the notices would need to be varied to reflect these reasons; and (2) a fair concession made by Mr Wylie. He conceded there is no impediment to Council issuing fresh enforcement notices to one or more of the appellants. I agree. Council is, on my reading of the PA, free to issue new enforcement notices, provided it holds the belief required by s 168(1) of the PA.
 Before making final orders in the appeal, I will hear from the parties as to whether further orders, or declaratory relief, can be granted under s 47(2) of the Planning & Environment Court Act 2016 in relation to: (1) the development offence committed; and (2) consequential orders that reflect the substance of exhibit 6. In the event this course requires the making of an application, I can indicate I would be positively disposed to grant leave to make such an application orally to minimise further cost.”
- On 16 April 2021, I made final orders in the appeal, which set aside each enforcement notice. The final orders also made provision for the matters foreshadowed in paragraph  of the RFJ. It was pointed out by Mr Skoien that these orders include declarations binding on all appellants. Those declarations quelled the key issue in dispute between the parties.
- The starting position with respect to costs is that provided by s 59 of the Act. Subject to sections 60 and 61, this provision provides that each party to a P&E Court proceeding must bear its own costs for the proceeding. The applicants rely upon s 60 of the Act to depart from this position. It is submitted the Court’s power to make an order as to costs in the present circumstances is enlivened under s 60(1)(b) and (1)(i), which state:
“60 Orders for costs
(1) The P&E court may make an order for costs for a P&E 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;
The P&E court considers a proceeding was started or conducted without reasonable prospects of success.
(i) an…local government does not properly discharge its responsibilities in the proceeding.”
- There was no contest that this appeal is a ‘P&E proceeding’ for the purposes of s 60. Further, there was no contest as to the principles to be applied in relation to the above provisions of the Act.
- In simple terms, it is contended that the costs power is engaged in relation to the applicants because Council’s position in relation to the giving of an enforcement notice ‘was so lacking in merit or substance as to be not fairly arguable’.
- To make good this submission, Mr Wylie relied upon: (1) the applicants’ success in the proceeding overall; (2) the findings at paragraphs , , ,  and  of the RFJ; (3) the concession made on behalf of Council in its written submissions in relation to the applicants; and (4) the timing of Council’s concession, which was described as inexplicably and unreasonably late.
- The same points are also relied upon to establish, in the alternative, that the position adopted by Council in relation to the applicants amounted to a failure to properly discharge its responsibilities in the proceeding.
- To further support an order as to costs, Mr Wylie submitted (at paragraph 22 of his written submissions) there were considerations favouring the exercise of the costs discretion in his clients’ favour. The three considerations advanced were: (1) there was an absence of disentitling conduct on the part of the applicants; (2) the Council’s position meant the applicants had, in practical terms, no option but to prosecute the appeal and incur the associated costs; and (3) Council did not give the appellants a show cause notice, which may have provided an opportunity to avoid the proceeding in so far as it related to the applicants.
- It can be accepted that the applicants enjoyed success in this proceeding. This is established by the final orders made, which set aside the relevant enforcement notice and, further, make no orders akin to enforcement orders against them. It does not however follow that Council’s case against the applicants was frivolous, or vexatious, or not fairly arguable.
- At the time the appeal was commenced, it was clear the appellants were the joint owners of the relevant land and accepted that clearing had been undertaken on it. Drawing a distinction between the liability of any one appellant, be it as a principal offender or party to the offence, at this stage of the proceeding would have been difficult for Council. That position was not made any easier by the Notice of Appeal. This document did not identify the appellants who were, or were not, responsible for the vegetation clearing. Rather, the document raised an important and central issue on behalf of all of the appellants: did the vegetation clearing on the land require a development permit before it could be lawfully carried out? This was the primary issue in the proceeding. Council’s prospects of success in relation to the issue were, as the reasons for judgment demonstrate, arguable. Indeed, the success Council did enjoy in the proceeding establishes that it had a reasonable basis to issue some form of enforcement notice, which required the cessation of clearing and the rehabilitation of the land.
- The prospects of success that a party may enjoy in litigation are rarely static. Prospects can increase or decrease as more information, namely evidence, comes to light. This proceeding was no exception. As Mr Wylie pointed out, the affidavit material filed before the hearing presented a clear opportunity for Council to consider its position in relation to each of the applicants. As the record demonstrates, Council did precisely this. It kept its case under review and elected to change its position after all of the evidence was before the court, not just untested affidavit material. The concession it made was consistent with a recognition that the case against the applicants, which asserted they committed an offence was unsustainable. In the RFJ, I recorded the concession made and noted it was a fair and correct one.
- In my view, it is fair to say that Council’s case against the applicants was one that did not have reasonable prospects of success at the close of evidence. This was addressed by the concession made in Council’s written submissions. Council did not press the point after the close of evidence. The real criticism is therefore one of timing. Should Council have conceded earlier?
- With the benefit of hindsight, Council’s concession may have been made after it had received and digested the affidavits of Antonio and Carmela Serratore. That said, given the nature of the subject matter, which involves an alleged development offence, and given there was a serious question about which appellant was a principal offender or party to the development offence, I do not regard it as unreasonable for Council to have withheld its concession until all of the evidence had been tested in cross-examination. The election to take this course was, in my view, unsurprising given there was no doubt that extensive vegetation clearing works had been undertaken on the land.
- Reasonable minds can differ as to if, and when, a concession is offered in litigation. Here, I am not prepared to be critical of the timing of Council’s concession. It is one that was fairly made. It was made with the benefit of all of the evidence, including evidence elicited in cross-examination. It was timely having regard to the completion of the evidence. Ms Serratore’s oral evidence was completed at 2:58pm on 23 September 2020. Written submissions, containing Council’s concession, were delivered the following morning on 24 September 2020.
- Given the above, I do not accept it has been established that Council failed to properly discharge its responsibilities in the proceeding for the purpose of s 60(1)(i) of the Act.
- I do however accept that Council’s case in relation to the applicants was without reasonable prospects. This can be said to enliven s 60(1)(a) of the Act. It was enlivened at the close of the evidence, but as the background set about above reveals was remedied within a period of less than 24 hours. That this situation was remedied by Council in the form of a timely concession, is a compelling reason to conclude that, in the exercise of the discretion, no order should be made as to costs. I say this even assuming the discretionary matters raised by Mr Wylie at paragraph 22 of his written submissions are established, and attract considerable weight in the exercise of the discretion.
- I would add there is a further discretionary reason that militates against the making of a costs order here. It was discussed by Mr Skoien at paragraphs 2.21 to 2.25 of his written submissions with respect to costs, which I accept. In simple terms, the submission points out that the key issue in the proceeding, involving expenditure by any party of any substantial time, effort, or cost, was the question of whether the vegetation clearing was unlawful. A uniform case was advanced for all appellants in relation to this issue, namely that no development permit was required to carry out the vegetation clearing on the land. This point was resolved in a way that all parties enjoyed a measure of success. This is reflected in the final orders. Those orders bring to an end that dispute for all appellants, who are joint owners of the land. Once this is appreciated, it puts the success enjoyed by the applicants in its proper context. That success was not enjoyed without losing part of a significant issue along the way.
- I am therefore not persuaded in the exercise of the discretion to depart from the usual position as to costs.
- The amended application filed 10 June 2021 is therefore dismissed.
- Published Case Name:
Serratore & Ors v Noosa Shire Council (No.2)
- Shortened Case Name:
Serratore v Noosa Shire Council (No.2)
 QPEC 46
Williamson QC DCJ
10 Sep 2021