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  4. SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No. 2) - [2022] QPEC 51

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SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No. 2)[2022] QPEC 51

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No. 2)[2022] QPEC 51

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2) [2022] QPEC 51

PARTIES:

SDA PROPERTY NOMINEES PTY LTD ACN 634 072 030 ATF SDA HOLDINGS TRUST

(appellant)

v

SCENIC RIM REGIONAL COUNCIL

(respondent)

and

AMANDA HAY

(eighth co-respondent by election)

and

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC

(twentieth co-respondent by election)

FILE NO:

2001 of 2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2022

JUDGE:

Williamson KC DCJ

ORDER:

Orders in accordance with paragraph [122].

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – Costs – where applicant appeal against deemed refusal of a superseded planning scheme application for short term disability accommodation – where appeal resisted by two Co-respondents-by-election – where appeal was successful – whether the resistance of the appeal, in part, was frivolous and/or vexatious – whether the co-respondents-by-election failed to discharge their responsibilities in the proceeding – whether the power to award costs under s 60(1) of the Planning & Environment Court Act 2016 is enlivened – whether the discretion to make an order as to costs should be exercised – whether costs should be assessed on the standard or indemnity basis.

CASES:

Gold Coast Motorsports Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33

Ko v Brisbane City Council & Anor (No. 2) [2019] QPELR 187

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

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2021] QPEC 75

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39

Sincere International Group Pty Ltd v Council of the City of the Gold Coast (No. 2) [2019] QPELR 662

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31

LEGISLATION:

Planning Act 2016, s 5

Planning and Environment Court Act 2016, ss 10, 59 and 60

COUNSEL:

Ms J Bowness for the appellant

Mr M McDermott for the respondent

Ms A Hay (self-represented)

Ms J Lockey for the twentieth co-respondent by election

SOLICITORS:

MacDonnells Law for the appellant

King & Company Solicitors for the respondent

Introduction

  1. [1]
    On 6 October 2022, I published my reasons for judgment (RFJ) with respect to the issue of approval/refusal of the development application the subject of this appeal,[1]  which is an impact assessable superseded planning scheme application. The application sought approval to develop land at Eagles Retreat Place, Mount Tamborine with 11 Tourist Cabins and an ancillary communal leisure facility. The Cabins are designed to provide short-term accommodation for people with disabilities and their carers/families.
  2. [2]
    For the reasons set out in the RFJ, the appeal will be allowed in due course, and the development application approved subject to conditions. The parties are working towards the preparation of a final conditions package.
  3. [3]
    At the hearing of the appeal, the Appellant and Council contended for approval.[2]
  4. [4]
    Two remaining Co-respondents by election, the Tamborine Mountain Progress Association (TMPA) and Ms Hay (collectively the Co-respondents) contended for refusal.[3] The reasons for refusal were wide ranging.[4] Non-compliance was alleged with 27 provisions of the planning scheme and required consideration to be given to matters with respect to visual and scenic amenity, character, landscaping, noise, lighting, bushfire, traffic, infrastructure, community/economic need and community expectations.[5]
  5. [5]
    To discharge its onus, the Appellant engaged 10 experts. Council engaged 5 experts for some, but not all, of the fields of expertise raised by the reasons for refusal. The Co-respondents did not call any expert evidence in support of their respective refusal cases. Nor did they challenge, by way of cross-examination, the evidence of the Appellant’s and Council’s experts. Individual statements of Ms Lockey and Ms Hay were tendered.[6]
  6. [6]
    The Co-respondents were unsuccessful in their opposition to an approval. The cases conducted by them were devoid of town planning merit.  At paragraphs [314] to [317] of the RFJ, I made the following observations:[7]

“[314]  The matters that could be said to favour refusal are underwhelming. They are deserving of little weight and, even adopting the most generous view, are devoid of town planning merit. They should not stand in the way of an approval.

 [315]  In my view, the refusal cases advanced on behalf of Ms Hay and TMPA were so devoid of merit to be groundless and vexing. This was particularly troubling given TMPA, and Ms Lockey, are experienced litigants in this Court. It is not unreasonable, in my view, to expect experienced litigants to be aware of the implied undertaking they give to the Court and other parties under s 10(2) of the Planning & Environment Court Act 2016. Nor is it unreasonable to expect that an entity such as TMPA would appreciate the difference between Specific Outcomes and Probable Solutions in a planning scheme it has sought to uphold in this Court over many years.

 [316]  Reaching a conclusion that the refusal cases were devoid of merit and, in turn, groundless and vexing is inevitable once it is appreciated that the Co-respondents agitated for refusal in the following circumstances:

  1. (a)
    they did not call expert evidence in support of their respective cases;
  1. (b)
    they did not cross-examine any witness in the appeal, including experts expressing views that were directly at odds with their refusal cases;
  1. (c)
    they alleged, and pressed, non-compliance with provisions of the planning scheme that have no application to the site or proposed development;
  1. (d)
    they maintained non-compliance with many provisions of the planning scheme on the footing that quantitative measures prescribed by Probable Solutions were exceeded, in circumstances where:
  1. (i)
    the Probable Solutions relied upon do not expressly apply to Impact assessable development; and
  1. (ii)
    the planning scheme, properly construed, does not suggest that compliance with the TMZC and TCC codes require compliance be demonstrated with Probable Solutions in any event;
  1. (e)
    written submissions prepared on behalf of TMPA were one page and did not address each provision of the planning scheme with which non-compliance was alleged;
  1. (f)
    TMPA, through Ms Lockey, led evidence that asserted non-compliance with provisions of the planning scheme that were not identified in the list of issues; and
  1. (g)
    Ms Hay did not establish how, and in what way, she would be adversely impacted by the development if approved – her interest in the development was not the subject of evidence.

 [317]  The decision by TMPA and Ms Hay to persist with their refusal cases resulted in a waste of public and private resources. The public resources to which I refer include the resources of the Court.”

  1. [7]
    On 21 October 2022, Council filed and served an application in pending proceeding seeking an order that the Co-respondents pay part of its costs of the appeal from 6 September 2022.[8] The costs sought are to be assessed on the standard basis.
  2. [8]
    On 24 October 2022, the Appellant filed and served an application in pending proceeding seeking an order that the Co-respondents pay part of its costs of the appeal, broken into two components, namely: (1) a proportion of its costs incurred from 21 July 2022 to 10 September 2022, assessed on the standard basis; and (2) a proportion of its costs incurred from 11 September 2022 to 15 September 2022, assessed on the indemnity basis. 
  3. [9]
    Both applications for costs are opposed by the Co-respondents.

The costs power

  1. [10]
    The starting position in this ‘P&E proceeding’ is that each party is to bear its own costs.[9] This is subject to, inter alia, s 60 of the Planning & Environment Court Act 2016 (PECA).  This provision confers a power on the Court to make an order as to costs where a party has incurred costs in one, or more, of nine identified circumstances identified in s 60(1)(a) to (i). If one or more of the circumstances are established, it does not necessarily follow that an order for costs will be made. There remains an unfettered discretion to make such an order.[10] If an order is made, it can be about a proceeding, or part of a proceeding.[11] A part of a proceeding includes the defence of a P&E court proceeding.[12]
  2. [11]
    The Appellant and Council contend two of the circumstances identified in s 60(1) are present in this case, namely those stated in subsections (b) and (i). These provisions are in the following terms:

“(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—

…

  1. (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. (i)
    an applicant, submitter, assessment manager, referral agency or local government does not properly discharge its responsibilities in the proceeding.”
  1. [12]
    The phrase ‘frivolous or vexatious’ is not defined. It is, as a consequence, to be given its ordinary meaning. The words are used in everyday language.[13] For an identical legislative provision, the words have been held to mean:
    1. (a)
      ‘frivolous’ means, inter alia, ‘of little or no value or importance, paltry’, ‘having no reasonable grounds’, ‘lacking seriousness or sense’, ‘not worthy of serious notice’;[14] and
    2. (b)
      ‘vexatious’ means, inter alia, ‘vexation, vexing, annoying’ and ‘productive of serious and unjustified trouble and harassment’.[15]
  2. [13]
    To establish a proceeding, or part thereof, is frivolous or vexatious, something more than a lack of success needs to be shown.[16] Inevitably, whether a proceeding, or part thereof, is characterised as frivolous or vexatious will turn on the circumstances of the case, which includes public policy considerations and the interests of justice.[17]
  3. [14]
    The Co-respondents are each a ‘submitter’ as defined in the Planning Act 2016.[18] They each made a properly made submission about the development application the subject of the appeal. Section 60(1)(i) of PECA will be engaged where it is demonstrated that, as submitters, the Co-respondents did not properly discharge their responsibilities in the proceeding.
  4. [15]
    As to what constitutes a party’s ‘responsibilities’ in a proceeding for the purpose of s 60(1)(i) of PECA, I repeat what I said in Sincere International Group Pty Ltd v Council of the City of Gold Coast (No 2) [2019] QPELR 662 at paragraphs [100] to [102]:

“[100]  In my view, s 60(1)(i) of the 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 the PECA. This provision states:

  1. (2)
    The parties to a P&E Court proceeding impliedly undertake to the court and each other to proceed in an expeditious way.

[101]  Section 10(2) of the PECA imposes a responsibility on all parties to a proceeding for the purposes of s 60(1)(i) of the 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 92–3; [2011] QPEC 118 at [11] 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)

[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 the 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. In this way, litigation would proceed, in my view, in an expeditious way.”

  1. [16]
    For a local government to demonstrate compliance with s 10(2) of PECA, I said in Sincere (Supra) at paragraph [103]:

“[103]  Compliance with s 10(2) of the 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 the 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 the PECA.”

  1. [17]
    I made a similar observation in Ko v Brisbane City Council & Anor (No.2) [2019] QPELR 187 at paragraphs [42] to [44] with respect to submitters:

“[42] …Section 10(2) of the Planning & Environment Court Act 2016 expressly recognises that parties to a P&E Court proceeding impliedly undertake to the court, and each other, to proceed in an expeditious way. This implied undertaking requires, in my view, each of the parties to a proceeding to litigate only the real issues in dispute without undue delay, expense and technicality.

[43]  What does this mean, in practical terms, for a submitter contending for the refusal of a development application? The implied undertaking requires a submitter in this position to, inter alia, notify issues that are directed at the question of approval or refusal. It also requires a submitter to carefully consider the requirements of the statutory assessment regime, including, if relevant, whether there are sufficient grounds to justify an approval in the circumstances of the case.

[44]  Importantly, an assessment will need to be made by a submitter as to whether an issue calls for refusal or, alternatively, is a matter for conditions only. This assessment will need to take into account, where relevant, the views of expert witnesses and whether those views are supportable having regard to relevant planning documents. This assessment is not fixed at a single point in time. A submitter will need to ensure that issues are kept under review, particularly having regard to changes that are made to a development application and information which comes to light as the case progresses to hearing.”

  1. [18]
    It can be observed that the Co-respondents’ attention was drawn to the passage extracted from the decision in Ko. The paragraphs are quoted in a without prejudice letter (save as to costs) dated 21 July 2022.[19]

A threshold issue

  1. [19]
    A significant part of Ms Hay’s written submissions, and supporting affidavit, focus upon a contention that Council’s application should be dismissed because ‘it appears to have been improperly made’.[20] The point advanced by Ms Hay, in writing, was to the effect that Council’s solicitor had no authority to file the application for costs on 21 October 2022 for the following reason: [21]

“…the authorisation to file such an Application only came into effect on 25 October 2022 (the date of the SRRC Council Ordinary Meeting at which the recommendation made by the General Manager Customer and Regional Prosperity was moved, seconded and carried unanimously) ie four (4) days after the Application was in fact prepared and signed by King and Company Solicitors and one (1) day after the Application was filed.” 

  1. [20]
    Further to this contention, I note that in an email sent by Ms Hay to Council’s solicitor that she contended the deficiency identified with respect to instructions was not remedied by reference to any delegated authority to the Chief executive of the Council or Council officers.[22]
  2. [21]
    During cross-examination, Ms Hay’s position about this point softened. As I understood her evidence, the threshold point she wished to agitate had reduced to a suggestion that there was no evidence that instructions had been given to Council’s solicitor pursuant to a delegated authority. In any event, I am satisfied that the threshold issue identified by Ms Hay should not succeed. The reasons for this were correctly identified in an affidavit of Council’s solicitor, Ms Kay.[23]
  3. [22]
    Ms Kay deposed to receiving instructions from Mr Mark Lohmann, the Manager Regional Development, Health and Biodiversity for Council on 12 October 2022. Mr Lohman had, at the date of the instructions, been employed by Council in the position of Manager Regional Development, Health and Biodiversity since 13 December 2021.[24] Mr Lohmann gave instructions to the solicitors to seek costs against the Co-respondents, incurred from 6 September 2022. The costs sought were to be assessed on the standard basis.[25]
  4. [23]
    That Mr Lohmann had authority to give the instructions with respect to costs was explained by Ms Kay in an email to Ms Hay dated 28 November 2022.[26] The email states, in part:

“In our view, your reliance on there being a need for a delegation from Council to the CEO in order to provide instructions about costs in a proceeding is misplaced. We draw your attention to section 240(1) of the Local Government Act 2009, which states:

  1. In any proceeding, the chief executive officer, or another employee authorised in writing by the local government –
  1. may give instructions and act as the authorised agent for the local government; and
  2. may sign all documents for the local government.

Further, section 259(1) of the Local Government Act 2009 states:

  1. A chief executive officer may delegate the chief executive officer’s power to an appropriately qualified employee or contractor of the local government.

To this end, please find attached Council’s Delegations Register – Chief Executive Officer to Employee. In particular, we refer you to page 285 where the power of the CEO to act pursuant to section 240(1) has been delegated to…the Manager Regional Development, Health & Biodiversity.

In light of the above information…we invite you to withdraw the submissions you make…”

  1. [24]
    The delegations register referred to in Ms Kay’s letter was attached to a certificate prepared by the Chief executive officer of Council under s 251 of the Local Government Act 2009.[27] The register reveals that the following powers were delegated to, inter alia, the Manager Regional Development, Health and Biodiversity as at 16 September 2022:

“Power to give instructions and act as an authorised agent for the local government and sign all documents for the local government in any legal proceedings.”

  1. [25]
    The above matters pointed out by Ms Kay establish that appropriate instructions had been received prior to filing Council’s application for costs on 21 October 2022.  In the circumstances, the threshold point raised by Ms Hay does not stand in the way of the Court hearing and determining Council’s application for costs.

Is the power to make an order as to costs enlivened?

  1. [26]
    Having regard to the findings at paragraphs [314] to [317] of the RFJ, I have no hesitation in concluding that the power to make an order as to costs is engaged by operation of ss 60(1)(b) and (i) of PECA. The findings set out in these paragraphs of the RFJ establish that the refusal cases advanced by the Co-respondents were:
    1. (a)
      ‘frivolous’, in that their cases did not manifest ‘reasonable grounds’ to pursue a refusal;[28]
    2. (b)
      ‘vexatious’, in that their cases were ‘productive of serious and unjustified trouble and harassment’;[29] and
    3. (c)
      inconsistent with their responsibilities in the proceeding, namely to litigate only the real issues in dispute that warranted refusal of the development application.
  2. [27]
    The costs power was not enlivened when this appeal was commenced. This is because the appeal is one against a deemed refusal, and Council gave notice that it would contend for refusal on notified grounds. Council also gave notice that it would rely upon a number of experts in its case, that is, to support refusal. The question to be considered in this context is: at what point did the proceedings engage ss 60(1)(b) and (i) of the PECA?
  3. [28]
    It is open to conclude that the costs power was engaged as early as 26 August 2022. By this time: (1) all of the joint reports in the appeal had been completed for some months; (2) the Court was satisfied that the appeal ought be heard and determined on the basis of an amended development application, incorporating changes made as a consequence of recommendations made during the joint expert meeting process; (3) the Appellant had served the separate reports prepared by its experts; (4) Council had served the separate reports prepared by its experts; (5) Council had given notice that it no longer maintained the application should be refused and would seek the imposition of reasonable and relevant conditions; and (6) the Co-respondents had received an offer to settle the appeal.[30] Whilst, as I say, it is open to conclude that the costs power was engaged on 26 August 2022, I am prepared to adopt a more generous view of the circumstances in favour of the Co-respondents given the volume of material to be considered.
  4. [29]
    There was a significant volume of material for the Co-respondents to consider and digest. Taking this into account, the point in time at which their cases, in my view, engaged ss 60(1)(b) and (i) was 6 September 2022. By this time, all of the matters identified in paragraph [28] had come to pass and sufficient time had elapsed for the Co-respondents to consider all of the available material. They had also been given ample time to form a view about their prospects of success in the appeal. In addition, by 6 September 2022:
    1. (a)
      the Co-respondents had received a second without prejudice offer to settle the appeal, which was rejected on 4 September 2022;
    2. (b)
      the parties participated in a review before the Court (on 5 September 2022), the purpose of which was to examine the planning scheme provisions relied upon to warrant refusal of the development application; and
    3. (c)
      the Co-respondents had formed the view, which they communicated to the other parties on 31 August 2022, that they did not wish to cross-examine any expert witness.
  5. [30]
    By 6 September 2022, the Co-respondents were in a position to review the issues they sought to agitate in the appeal to determine whether any, or all of them, called for refusal or, alternatively, were a matter for conditions only. The evidence before the Court suggests that an objective examination of the kind discussed in Ko (Supra) was not undertaken. This is because the review conducted by each of the Co-respondents was informed, if not dictated by, inter alia: (1) a misguided view that the development needed to strictly adhere to Probable Solutions in the planning scheme that did not directly apply to it, or operate as limitations;[31] and (2) a misguided view that the Co-respondents were seeking to uphold the Community’s expectations, which were articulated in the properly made submissions and deserving of significant weight.
  6. [31]
    Both Ms Hay and Ms Lockey were required for cross-examination at the hearing on 5 December 2022. Their oral evidence reinforced that the costs discretion was enlivened. They both:
    1. (a)
      confirmed their respective decisions to proceed with the appeal were not informed by formal legal or planning advice; and
    2. (b)
      confirmed their reasons for continuing with a refusal case were anchored in the properly made submissions, and town planning reports forming part of those submissions – an immediate difficulty for these documents was discussed at paragraph [73] of the RFJ:

“There is an immediate difficulty that must be confronted about the submissions received during the public notification process. It is clear that they respond to a different form of development to that which the Court is asked to consider. During the public notification process, the proposed development comprised 12 Tourist Cabins. The development now comprises 11 Cabins. Further, the development the subject of the objections does not reflect the minor change authorised by the order of 14 July 2022. This impacts on the weight that can be attributed to the submissions.”

  1. [32]
    This is not the only difficulty confronting the properly made submissions and associated town planning reports. They are identified in the RFJ, in particular at paragraph [99], which states:

“It is my view that the evidence of community expectations, to be found in the submissions and lay witness statements of Ms Hay and Ms Lockey: (1) sits uncomfortably with the planning scheme, particularly the provisions identifying how compliance is achieved with the TMZC and TCC; and (2) finds little support in the evidence before this Court about the proposed development and its impact on amenity, character, ecological features of significance, scenic amenity and landscape values. As a consequence, little weight can be afforded to the expectations (and grounds for objection founded upon those expectations) stated in the submissions and lay witness statements.”

  1. [33]
    Slavish and inflexible adherence to the properly made submissions and associated town planning reports was, in my view, misguided.

Discretionary reasons militating against a costs order

  1. [34]
    As I have already observed, a costs order does not necessarily follow where s 60(1) of the PECA is engaged. There remains a discretion to be exercised by the Court.
  2. [35]
    The Co-respondents filed written submissions that seek to raise a number of discretionary grounds for consideration.
  3. [36]
    At paragraph 2 of Ms Hay’s written submissions, dated 25 November 2022 and filed in response to the Appellant’s application for costs, she submitted:

“…it is not possible to respond to the Appellant’s eight (8) page Application and seventy-six (76) page Affidavit filed on 24 October 2022, and the content of its four (4) page outline of submissions filed on 4 November 2022 in four (4) pages limited in His Honour’s Order of 11 November 2022. This would be an unrealistic expectation.”

  1. [37]
    The above submission refers to an order that I made on 11 November 2022, which included a page limit for written submissions filed in relation to the applications. The same page limit was imposed on each party. On the same date I also ordered, by consent, that the applications be heard on the papers.
  2. [38]
    On 28 November 2022, I gave Ms Hay leave to file and read an application in pending proceeding. An order was sought that the applications be heard and determined in-person, rather than on the papers. The grounds stated in support of the application included the following:

“The Co-respondents by Election would be disadvantaged should the Application in paragraph 1 above be heard on the papers, in that the Appellant and the Respondent were not limited in the volume of material each could file with the court in support of their respective Applications in Pending Proceedings filed 24 October 2022.”

And:

“It is not possible for the Co-respondents by Election to address the content of the Appellant’s Application…in 4 page written submissions.”             

  1. [39]
    Ms Lockey supported the application for an in-person hearing.
  2. [40]
    On 28 November 2022, I ordered that the applications be heard in-person on 5 December 2022. The transcript of the hearing of the application on 28 November 2022 reveals the following exchange between the Court, Ms Hay and Ms Lockey:

“HIS HONOUR: …the purpose I’m giving this oral hearing is because at paragraph 3 of the application [in] pending proceeding it says it’s not possible for the …co-respondents by election to address the contents of the application [in] pending proceeding, the affidavit in support, the outline of submissions… So that is your opportunity to address the content of all of those documents… I will sit here as long as it takes you to walk me through your responses to each of those documents…

CO-RESPONDENT HAY: Yes, your Honour.

CO-RESPONDENT LOCKEY: Yes, it shouldn’t be long.

HIS HONOUR: But there’s no time limit. …You just take the time you want to respond to the material and …just to be clear, that is the purpose of the hearing. So when I reserve the matter you have had an opportunity to say…anything and everything you wish to say in response to these applications.”

CO-RESPONDENT HAY: Yes, your Honour. ”

  1. [41]
    The purpose of setting out this background is to make clear that the Co-respondents’ submissions going to the exercise of the costs discretion comprise two parts: (1) the written submissions filed and served by them; and (2) oral submissions made on 5 December 2022.
  2. [42]
    I will deal with the written and oral submissions made by each Co-respondent separately.

Ms Hay – written submissions (Appellant’s application)

  1. [43]
    A review of Ms Hay’s written submissions, dated 25 November 2022 filed in response to the Appellant’s application for costs, reveals she advanced the following points:
    1. (a)
      given Council had engaged 5 experts for the appeal and her case was aligned with Council up to 23 August 2022, Ms Hay did not consider the engagement of any other experts on her behalf was warranted – she said this was a poor decision on her part;[32]
    2. (b)
      it was not possible for Ms Hay to engage separate experts after 23 August 2022;[33]
    3. (c)
      Ms Hay said she was ‘encouraged to continue’ by an observation made by the Court at a review on 12 August 2022, namely that ‘you only need to win one issue’ or words to that effect;[34]
    4. (d)
      Ms Hay’s decision to continue participating in the appeal was based on the separate report of Mr Ovenden dated 19 August 2022, which did not fully capitulate on an earlier position stated in a joint report;[35]
    5. (e)
      Council did not serve its final separate report of Mr Tolliday until 25 August 2022;[36]
    6. (f)
      the Appellant did not serve its final separate report of Dan Clowes until 26 August 2022;[37]
    7. (g)
      Ms Hay took the Appellant’s without prejudice letter of 21 July 2022 to be an indication that it was unsure of its case;[38]
    8. (h)
      Ms Hay did not have the benefit of two further separate reports prepared by Mr Ovenden, dated 13 and 14 September 2022, prior to the commencement of the hearing and was, as a consequence, disadvantaged – particularly given wording from one of the reports was cited in the RFJ;[39]
    9. (i)
      Ms Hay does not recall whether an application was made to admit Mr Ovenden’s further separate statement of evidence dated 14 September 2022 into evidence;[40]
    10. (j)
      the submissions made during the public notification period were rendered all but useless, and afforded little weight, by reason of the minor change made to the development application;[41]
    11. (k)
      the first indication that Council was supportive of the development application was on 15 September 2022;[42]
    12. (l)
      the Appellant protracted the litigation by proceeding with the unsuccessful application heard, and determined[43] on 2 December 2021;[44]
    13. (m)
      it was premature for the Appellant to provide a list of proposed conditions on 14 July 2022;[45]
    14. (n)
      Ms Hay derived no financial or personal gain from maintaining her position in the appeal and her actions were motivated and undertaken for the ‘good of the community’ in which she lives;[46]
    15. (o)
      Ms Hay lacked the resources to engage representation;[47]
    16. (p)
      the decision not to cross-examine was as a consequence of ‘considerable pressure [from the court] to reduce the number of hearing days’, which disadvantaged Ms Hay;[48]
    17. (q)
      the legal system is geared towards those that have significant financial resources;[49] and
    18. (r)
      there is no mention of whether Council is covered by an insurance policy in respect of the appeal and the costs application.[50]
  2. [44]
    Subparagraph (a) explains why Ms Hay did not retain experts. The explanation reveals she made a forensic decision, which proved to be a poor one. That may be so, in hindsight, but the fact remains that Ms Hay persisted with a refusal case in the face of a large body of contrary unchallenged evidence. This is a factor that supports the exercise of the costs discretion in favour of the Appellant.
  3. [45]
    Subparagraph (b) reflects that Ms Hay was of the view it was impossible to retain experts to support her case after 23 August 2022, being the date Council gave notice of its change of position in the appeal. I do not accept this contention militates against an exercise of the costs discretion in favour of the Appellant. It was open to Ms Hay to make an application to the Court to nominate her own experts. That she chose not to was a forensic decision, no doubt informed by likely cost consequences. That being so, the decision, and reasons for it, do not explain why Ms Hay persisted with her case for refusal in the absence of expert evidence, being one of a number of circumstances referred to in paragraph [316] of the RFJ.
  4. [46]
    I do not accept a submission that Ms Hay, as suggested by subparagraph (c), was encouraged to maintain a refusal by an observation made by the Court on 12 August 2022.
  5. [47]
    The appeal was before the Court on 12 August 2022 for a review. At this time: (1) Council was contending the development application should be refused; (2) an updated list of reasons for refusal had been prepared and alleged non-compliance with 40 provisions of Council’s planning scheme;[51] (3) the reasons for refusal relied upon by Council had reduced significantly to only planning and visual amenity issues; (4) the reasons for refusal relied upon by the Co-respondents extended beyond planning and visual amenity considerations; and (5) the appeal had not been allocated hearing dates.
  6. [48]
    Given the Co-respondents’ refusal cases were more extensive than Council’s case, and given the Co-respondents had not retained experts to support their respective cases, the transcript records that I made the following observation:[52]

“HIS HONOUR: So I know you’re both experienced in the court, and what I’m about to say is not in any way – I’m not being threatening, but I make a point of saying this. If you run a case where you do not call your own expert and everyone else is agreed against you, you understand the risk associated with that.

CO-RESPONDENT LOCKEY: We do, yes.

HIS HONOUR: Yes. And, as I say, I’m not saying that to be threatening. You understand that it’s not risk free.

CO-RESPONDENT LOCKEY: Yep.

HIS HONOUR: And where you have both…[Council]…and the applicant and their experts agreeing, I suspect you both understand and appreciate the degree of consideration that needs to be given to whether the point of agreement or your opposition to it still warrants refusal….”

  1. [49]
    Immediately following this exchange, the transcript reveals I said:

“The second thing I’ll say is that with about 20 years’ experience in this court…refusal cases generally turn on only a handful of things, and a handful of things doesn’t mean that what you’ve raised are – because …they’re small in number, they’re insignificant...you only need one point to win. And what I’m going to ask you to consider …is this. Just put aside all the planning scheme provisions for the moment and the numbers…“We say this warrants refusal because visual amenity, character impacts, impacts on adjoining neighbours” – those sorts of things that warrant refusal are probably pretty easily articulated…if they don’t find direct support in the planning scheme provisions you’re relying upon, I ask, rhetorically, why bother…”

  1. [50]
    This observation was then followed by this statement:

“So that’s not to say you have to go through your issues and drop everything. I’m not saying that. I’m just asking you to bring perhaps just a little bit of a sharper focus to it ..which you’re going to need to do anyway by the end of the trial, which you well know. You’ve got to be able to explain why these things warrant refusal, and the sooner you do that, I think, the better off everyone at the bar table will be…”

  1. [51]
    When the statement that ‘you only need one point to win’ is understood in its proper context, it cannot fairly be said that the words convey encouragement to continue with a refusal case. Rather, the remark forms part of a broader observation and invitation: the invitation was for the Co-respondents to review their extensive list of reasons for refusal that were not, at that stage, all supported by expert evidence.  The observation and invitation was made to assist the Co-respondents, having in mind responsibilities of the kind identified in Ko (Supra).
  2. [52]
    If a contrary position is assumed, namely that the words seized upon by Ms Hay did, as she says, provide encouragement to continue with the refusal case, the force of that encouragement loses its force once it is appreciated that the statement: (1) pre-dates the exchange of a number of separate statements of evidence; (2)  pre-dates the notice given by Council of its change in position, along with the evidence that it intended to rely upon in support of that changed position; and (3) pre-dates notification given by the Co-respondents that they did not require any opposing expert for cross-examination at the hearing, which was given on 31 August 2022.
  3. [53]
    Subparagraph (d) identifies that Ms Hay asserted that her decision to continue participating in the appeal relied on the separate report of Mr Ovenden dated 19 August 2022. Ms Hay accepts the report was provided to her on 23 August 2022. The email attaching the report gave notice of Council’s change in position. The email stated:

“Given the views expressed in the separate reports of Mr Ovenden and Dr McGowan, we are instructed that Council no longer maintains its refusal of the development application in the appeal and will instead seek the imposition of reasonable and relevant conditions.”

  1. [54]
    Given the terms of this email, Mr Ovenden’s separate report was only one matter Council pointed to as the basis for its change in position. Council also relied upon Dr McGowan’s report. This was an entirely reasonable position to adopt having regard to the opinions expressed in each report, which include the following:
    1. (a)
      at paragraph 7.1 of Mr Ovenden’s report:

“In my opinion, in the context of the changed application and the evidence of other experts, which was not available before completing the TPJER, the relevant town planning issues have either been satisfactorily addressed, may be addressed through conditions, or otherwise do not warrant refusal of the proposed development.”

  1. (b)
    at paragraphs 7 and 8 of Dr McGowan’s report:

“I acknowledge that a number of changes [made to the development application] will address the concerns I expressed in the Visual JER, but also note that not all of the recommendations I set out…have been incorporated… I am of the view that the remaining visual amenity concerns do not amount to reasons to refuse the proposed development.”

  1. [55]
    In support of a submission that Ms Hay relied upon, inter alia, Mr Ovenden’s report to continue with a refusal case, she drew attention to the following statements in that report:

“2.2 I maintain my opinion that the key issues are the scale of the use and its impact on the character and amenity of the site and surrounding area. My opinion regarding the scale of the use is tempered by the evidence of other experts and the changed proposal.”

And:

“4.3 I maintain that, at least on face value, the proposal is discordant with some key provisions of the planning scheme. However, I note the opinion of the visual amenity experts as indicated above and the findings of those experts suggests that…the proposal will not result in adverse consequences in terms of its impacts on amenity and the character of the area.”

And:

“5.2 Ultimately the question of whether the proposal complies with the planning scheme is a matter for the Court to determine with the benefit of all of the evidence.”

And:

“6.4 With regard to reasonable community expectations, this needs to be considered objectively in the context of the relevant assessment benchmarks in the planning scheme, and expert evidence.”

And:

“6.6 The matters in the submissions, and the expectations of those submissions, should be considered in the light of the treatment of those issues by the planning scheme, particularly in the context of the relevant zoning and precinct, and in the relevant assessment benchmarks. The potential impact of the proposal on the character, amenity and visual amenity of the site and area pervades the relevant assessment benchmarks. This is the lens through which community expectations around matters of height, bulk and scale should be considered.”

  1. [56]
    When each of the above paragraphs of Mr Ovenden’s report are read fairly with the conclusion to the same report, it cannot sensibly be suggested that they provided a sound basis for Ms Hay to maintain a refusal case. This is, in my view, put beyond doubt when paragraph 2.2 of the report is read with paragraph 6.7, which states:

“In the context of a changed proposal that, according to the visual amenity experts, would not result in unacceptable adverse impacts on the character and visual amenity, of the area, non-compliance with specific standards, such as the size of the units and site cover, has in my opinion, no town planning consequence. This is particularly so where there is a need for the specialist accommodation proposed, and the disability experts are satisfied that the proposal can operate as intended.” (emphasis added)

  1. [57]
    Having regard to the entirety of Mr Ovenden’s report, it is my view that it did not provide a foundation for Ms Hay to maintain a refusal case.
  2. [58]
    Subparagraphs (e), (f), (g), (l) and (m) make reference to events that occurred prior to 6 September 2022. The events do not individually, or taken in combination, suggest the costs discretion ought not be exercised favourably to the Appellant.
  3. [59]
    Subparagraph (j) represents, in part, a statement of fact consistent with paragraph [99] of the RFJ. The fact is relevant to both applications for costs. It is also a fact that Ms Hay should have been aware of, and taken into account, when considering her position in the appeal. That she did not appear to do so is a factor that supports the exercise of the costs discretion in the Appellant’s favour.
  4. [60]
    On the first day of the trial, Mr McDermott sought leave to rely upon Mr Ovenden’s report dated 19 August 2022.[53] Leave was required because Mr Ovenden wanted to depart from an opinion he had expressed in an earlier town planning joint report.
  5. [61]
    Leave was not granted on the first day of trial to rely upon Mr Ovenden’s report because I was not satisfied that he had identified each and every part of the joint report from which he wished to depart.[54] This deficiency was remedied through the provision of two further documents, which were ultimately received into evidence on 15 September 2022 and marked exhibits 35 and 36.
  6. [62]
    Exhibit 35 is a brief report dated 14 September 2022 (1.5 pages). It explains why Mr Ovenden changed his opinion in the appeal. Appended to the report is a copy of the town planning joint report, with paragraphs struck out that no longer reflect Mr Ovenden’s opinion.  The body of the report confirms that Mr Ovenden changed his opinion in light of new information coming to light, which he did not have at the time he participated in the town planning joint report. The ‘new material’ included the visual amenity joint report, and the changed development application.
  7. [63]
    Exhibit 36 is also a brief report (6 pages). It is Mr Ovenden’s report dated 19 August 2022. This report was provided to Ms Hay on 23 August 2022.
  8. [64]
    Subparagraph (h) records that Ms Hay submitted she was ‘disadvantaged’ because she did not have exhibits 35 and 36 until after the commencement of the hearing. I reject this submission.
  9. [65]
    Ms Hay was provided with a copy of exhibit 36 on 23 August 2022. The report was attached to the email discussed in paragraph [53]. It is also the same report that Ms Hay says she relied on ‘in considering [her] continued participation in the appeal’.[55] Once this is appreciated, any suggestion of disadvantage in relation to exhibit 36 cannot be accepted.
  10. [66]
    Exhibit 35, to which no objection was taken by Ms Hay, was provided to her after the hearing commenced. I have reviewed the report in detail. To suggest Ms Hay was disadvantaged by its late delivery is very difficult to accept given the report: (1) provides Mr Ovenden’s explanation for his change in opinion, which is consistent with the explanation offered in exhibit 36 – the explanation in both documents is founded upon the delivery of material (which is identified in both documents) that was not available at the time the town planning joint report was prepared; (2) makes clear that the change in opinion is by reference to areas of expertise to which Mr Ovenden deferred, such as visual amenity; and (3) explains the change in opinion by reference to reports prepared for the areas of need, traffic and disability experts, all of which were in Ms Hay’s possession well before the trial commenced.
  11. [67]
    A point made by Ms Hay is that she considers she was disadvantaged because the RFJ cited a part of exhibit 35. The report is cited at paragraph [234] of the RFJ, dealing with Specific outcome SO1 of the Tourist Cabin Code. The RFJ states:

“A useful summary of the position was well put by Mr Ovenden, the town planning witness called by Council, who said:

“...As an outcome of the analysis undertaken by the visual amenity experts in their JER, I note:

  1. the subject site and development of the scale proposed would have a relatively limited visual catchment (paragraph 78);
  2. the site is effectively buffered by undulating and densely vegetated landscape of the National Park to the east and the south (as well as undeveloped escarpment landscapes further east and south); (paragraph 79); and
  3. because of the relatively confined visual catchment, it is likely that any impacts on local character from the proposed development would be confined to a limited number of properties (paragraph 80) and the analysis of impacts on adjoining properties undertaken by Dr McGowan (paragraphs 88 to 94) suggests that impacts will not be unacceptable.”
  1. [68]
    I do not accept citing the above passage from exhibit 35 is evidence that Ms Hay has been disadvantaged in the running of her case. The RFJ cites the passage from exhibit 35 as a useful summary of visual amenity evidence. This was evidence from experts to which Mr Ovenden was deferring. It is evidence that Ms Hay was provided with well in advance of the trial.
  2. [69]
    Subparagraph (i) is a reference to exhibits 35 and 36. Contrary to Ms Hay’s recollection, an application was made for leave to rely upon these statements. This is reflected in the following exchange recorded in the trial transcript at day 2, pages 6 to 7:

“HIS HONOUR: Right. But …leave in relation to Mr Ovenden’s further separate statement is not opposed. Mr Batty?

MR BATTY: It’s not opposed, your Honour.

HIS HONOUR: And, Ms Hay, leave is not opposed?

CO-RESPONDENT HAY: Sorry, I didn’t hear that, your Honour.

HIS HONOUR: Leave is not opposed to Mr - - -

CO-RESPONDENT HAY: No. No, your Honour.

HIS HONOUR: Right. And, Ms Lockey, you’ll - - -

CO-RESPONDENT LOCKEY: No.”

  1. [70]
    Subparagraph (i) does not assist Ms Hay in opposing the Appellant’s costs application. I would however pause to observe that the above exchange reveals neither Ms Hay, nor Ms Lockey opposed the grant of leave in relation to Mr Ovenden’s further reports. Later parts of the transcript also confirm they did not object to the receipt of those reports into evidence, which were marked exhibits 35 and 36.
  2. [71]
    Subparagraph (k) cannot be accepted. The evidence establishes that Ms Hay was notified of Council’s change in position by email dated 23 August 2022. To submit otherwise is wrong.
  3. [72]
    I accept subparagraphs (n) and (o). They do not however explain, or excuse, Ms Hay’s decision to persist with a refusal in the circumstances set out at paragraphs [314] to [317] of the RFJ.
  4. [73]
    At paragraph 30 of her written submissions, Ms Hay stated:

“I did not cross-examine any witnesses for no other reason than that there was considerable pressure to reduce the number of hearing days. In hindsight, in attempting to satisfy the Court in that regard, I disadvantaged myself, which I now regret.”

  1. [74]
    I do not accept this submission.
  2. [75]
    Ms Hay did not give evidence, by way of affidavit, as to: (1) the nature of the ‘considerable pressure’; (2) the identity of the person/s bringing that pressure to bear; and (3) the particulars of when and where the pressure was brought to bear. There is indeed no evidence to demonstrate she was ‘pressured’ by the Court, or anyone else, to reduce the number of hearing days.
  3. [76]
    Subparagraphs (q) and (r) are irrelevant. They have no bearing on the exercise of the costs discretion.
  4. [77]
    I am satisfied the points considered above do not militate against granting the costs order sought by the Appellant. Nor do the points explain, or justify, why Ms Hay proceeded with her refusal case in the circumstances identified at paragraphs [314] to [317] of the RFJ.

Ms Hay – written submissions (Council’s application)

  1. [78]
    A review of Ms Hay’s written submissions,[56] dated 25 November 2022 filed in response to the Council’s application for costs, reveals she made a number of submissions (in addition to the threshold issue) as to why a costs order ought not be made against her. The reasons can be identified as follows:
    1. (a)
      when considering to withdraw her opposition to an approval, Ms Hay did not have the benefit of two further separate reports prepared by Mr Ovenden, dated 13 and 14 September 2022 prior to the commencement of the hearing and was, as a consequence, disadvantaged (particularly given wording from one of the reports was cited in the RFJ);[57]
    2. (b)
      Ms Hay said she was ‘encouraged to continue’ by an observation made by the Court at a review on 12 August 2022, namely that ‘you only need to win one issue’ or words to that effect;[58]
    3. (c)
      Ms Hay’s decision to continue participating in the appeal was based on the separate report of Mr Ovenden dated 19 August 2022, which did not fully capitulate on an earlier position stated in a joint report;[59]
    4. (d)
      Ms Hay does not recall whether an application was made to admit Mr Ovenden’s further separate statement of evidence dated 14 September 2022 into evidence;[60]
    5. (e)
      the submissions made during the public notification period were rendered all but useless, and afforded little weight, by reason of the minor change made to the development application;[61]
    6. (f)
      as a lay person, Ms Hay took the statement made in the email of 23 August 2022 from Council’s solicitor as a statement that Council was not supportive of the development application and would take a passive role in the appeal;[62]
    7. (g)
      the Appellant protracted the litigation by proceeding with the unsuccessful application heard, and determined,[63] on 2 December 2021;[64]
    8. (h)
      Ms Hay derived no financial or personal gain from maintaining her position in the appeal and her actions were motivated and undertaken for the ‘good of the community’ in which she lives;[65]
    9. (i)
      Ms Hay lacked the resources to engage representation;[66]
    10. (j)
      the decision not to cross-examine was as a consequence of ‘considerable pressure [from the court] to reduce the number of hearing days’, which disadvantaged Ms Hay;[67]
    11. (k)
      the legal system is geared towards those that have significant financial resources;[68] and
    12. (l)
      there is no mention of whether Council is covered by an insurance policy in respect of the appeal and the costs application.[69]
  2. [79]
    I have considered all of these matters at paragraphs [43] to [77]. For the reasons given therein, the points do not militate against granting the order sought by Council. Nor do the points explain, or justify, Ms Hay’s decision to persist with a refusal case in the circumstances identified at paragraphs [314] to [317] of the RFJ.

Ms Hay – oral submissions

  1. [80]
    Ms Hay made a number of oral submissions during the hearing on 5 December 2022.
  2. [81]
    As a starting point, she emphasised what was characterised as ‘inequity’. The inequity to which Ms Hay referred is that arising out of paragraph [43](l). This paragraph refers to a preliminary point taken by the Appellant in relation to TMPA’s submission made to Council during the public notification process.  Ms Hay’s point was that the hearing, and determination, of the preliminary point was a waste of public and private resources. In her view, the waste of resources should have been pursued by Council by way of a costs order, which never occurred.
  3. [82]
    The point Ms Hay sought to advance was that this demonstrates Council is bias against the Co-respondents, because it is pursuing a costs order against them and not the Appellant.
  4. [83]
    The Council’s decision to pursue the Co-respondents (and not the Appellant) for a costs order is not a matter for this Court. I have, however, had regard to the preliminary point to which Ms Hay refers and this Court’s published judgment. I am not persuaded the preliminary point and the associated circumstances (an alleged 8 week delay to the proceeding) are factors that militate against an order as to costs. The circumstances predate 6 September 2022. The circumstances also have no relationship to the issues advanced by the Co-respondents in support of refusal.
  5. [84]
    Ms Hay submitted orally that many of the points she wished to make were addressed in her cross-examination. After considering Ms Hay’s responses in cross-examination, it is my view that no new matters were raised beyond those identified at paragraphs [43] and [78].
  6. [85]
    The points raised in oral submissions, and in Ms Hay’s oral evidence, do not militate against granting an order as to costs. Nor do they explain, or justify, why Ms Hay persisted with her refusal case in the circumstances identified at paragraphs [314] to [317] of the RFJ.

TMPA – written submissions

  1. [86]
    A single set of written submissions were filed and served on behalf of TMPA. The submissions respond to both applications for costs. To oppose both applications, Ms Lockey, who is the author of TMPA’s written submissions, advanced the following points:
    1. (a)
      the RFJ were ‘minus local knowledge and community expectations’;[70]
    2. (b)
      the judgment relied ‘heavily on Mr Ovenden’s final position’;[71]
    3. (c)
      Mr Ovenden’s final position was not revealed until the day before the appeal concluded;[72]
    4. (d)
      it is on behalf of the community as president of TMPA that Ms Lockey ‘maintained my position in the appeal’;[73]
    5. (e)
      Ms Lockey had nothing to gain from the appeal and participated at great personal cost;[74]
    6. (f)
      Ms Lockey’s position ‘rested on the planning scheme submission’ forwarded to Council by TMPA during the public notification process, which was much the same as Council’s reasons for refusal;[75]
    7. (g)
      confirmation was supplied by a town planning lawyer along with input from a long time Council planner into her progress during the appeal;[76]
    8. (h)
      Ms Lockey said she was ‘encouraged’ by an observation made by the Court at a review on 12 August 2022, namely that ‘you only need to win one issue’ – this caused her to stand firm throughout the appeal;[77]
    9. (i)
      the planning scheme is the expression of the public interest and community expectations;[78]
    10. (j)
      to enable residents to have their say in court, TMPA’s approach to this appeal has been exactly the same as conducted for more than a decade;[79]
    11. (k)
      many residents have chosen to elect a member of TMPA executive to act as their agent in court;[80]
    12. (l)
      TMPA was responsible for the proforma submission submitted to Council by many residents;[81]
    13. (m)
      that 43 Co-respondents-by-election withdrew from the appeal because they were happy with the development is a ‘bizarre stretch of the imagination’;[82]
    14. (n)
      the preliminary legal point taken by the Appellant in December 2021 is evidence that it was not confident in its case;[83]
    15. (o)
      Ms Lockey viewed all correspondence from the Appellant with suspicion;[84]
    16. (p)
      the Appellant, from the start of the appeal displayed a propensity to dismiss lay witness statements, make misleading statements demeaning of TMPA and dismiss facts stated by TMPA as hearsay;[85]
    17. (q)
      in the body of Council’s reasons for refusal is a statement that the development application could not be conditioned;[86]
    18. (r)
      243 submissions were pronounced worthless by the Court, including a submission by a senior State government town planner;[87]
    19. (s)
      ‘my expectation to stay with the appeal rested on my conviction that a court visit to the site would reveal exactly what the problem was’;[88]
    20. (t)
      TMPA did not engage its own experts because it agreed, in general, with Council’s town planner;[89]
    21. (u)
      the Council’s notification of the change in position was different from ‘actually supporting the development application’;[90]
    22. (v)
      community expectations matter;[91]
    23. (w)
      ‘my position rested on strong planning points on behalf of the community’;[92]
    24. (x)
      Ms Lockey needed to know Mr Ovenden’s reasons for changing his opinion, which were not supplied until 14 September 2022;[93]
    25. (y)
      the time between Council’s change of position (23 August 2022) and the receipt of Mr Ovenden’s final report (14 September 2022) did not ‘afford me time to seek my own town planning expert’;[94]
    26. (z)
      the approval here opens the door for perceived inappropriate development on the entire plateau;[95]
    27. (aa)
      Council is incompetent and its pursuit of community leaders is vindictive and perfidious;[96]
    28. (bb)
      several minutes before the trial started Ms Lockey received from the Appellant and Council a ‘vast amount of new material’ that she was not given an opportunity to fully examine and reply;[97]
    29. (cc)
      the solicitors for the Appellant and Council have failed to act in an expeditious way as required by s 10(2) of PECA;[98]
    30. (dd)
      TMPA was not informed by Council’s legal representatives on 23 August 2022 that from this point onwards it ‘became liable to costs’;[99]
    31. (ee)
      Ms Lockey’s position in the Court, at great personal expense, was in response to community expectations and the potential harm the development would do to the area;[100]
    32. (ff)
      that community expectations ‘can easily be over ridden by how many like minded experts one can afford plus the injection of a heavy bias against the opposing submitters’ leads to the conclusion that justice can be bought;[101] and
    33. (gg)
      the situation is inequitable and sends the wrong message that the community is not welcome in the court system.[102]
  2. [87]
    Subparagraph (a) is wrong. The evidence before the Court included lay witness statements, which were considered along with the properly made submissions. Extensive consideration was given to the issue of community expectations arising from those documents at paragraphs [71] to [99] of the RFJ.
  3. [88]
    An objective reading of the RFJ reveals subparagraph (b) is wrong. The RFJ cited exhibit 35. The reference is to a part of the report that provides a useful summary of the visual amenity evidence, to which Mr Ovenden deferred. The relevant part of the report is set out at paragraph [67] above. An objective reading of the passage cited reveals it is a summary of the visual amenity evidence.  That evidence was available to Ms Lockey, and TMPA, well in advance of the trial.
  4. [89]
    Subparagraph (c) cannot be accepted for the reasons set out at paragraphs [60] to [66].
  5. [90]
    Subparagraphs (d) and (e) can be accepted, but do not explain, or justify, why TMPA maintained its position in the appeal in the circumstances discussed at paragraphs [314] to [317] of the RFJ.
  6. [91]
    Subparagraph (f) reveals an error in TMPA’s approach to an assessment of its prospects of success. The submission to which reference was made, and relied upon, was overtaken by events well before 6 September 2022. The report was prepared in response to the development application as originally made. It did not deal with the changed development application. This difficulty is discussed at paragraph [73] of the RFJ. This difficulty should have been clear to TMPA from the very terms of the submission relied upon.
  7. [92]
    Subparagraph (g) cannot be accepted. Ms Lockey confirmed in cross-examination that TMPA did not receive formal advice from a planning lawyer or local town planner during the appeal.
  8. [93]
    Subparagraph (h) is not accepted for the reasons set out at paragraphs [46] to [52].
  9. [94]
    Subparagraphs (i), (k), (l), (o), (v) and (ee) are accepted but do not explain, or justify, why TMPA maintained its position in the appeal in the circumstances discussed at paragraphs [314] to [317] of the RFJ.
  10. [95]
    Subparagraph (j) is not, in my view, relevant. Further, it does not explain, or justify, why TMPA maintained its position in the appeal in the circumstances discussed at paragraphs [314] to [317] of the RFJ.
  11. [96]
    Subparagraphs (m) and (p) are, gratuitous observations. They do not advance TMPA’s submissions.
  12. [97]
    Subparagraph (n) and (t), even if accepted as correct, involve matters that pre-date all of the evidence prepared for the hearing and do not advance TMPA’s submissions.
  13. [98]
    Subparagraph (q) reveals an error in TMPA’s approach to an assessment of its prospects of success. The report to which reference is made, and relied upon, was abandoned by Council on 23 August 2022. Reliance upon the document prepared by a Council officer after this point in time does not explain, or justify, why TMPA maintained its position in the appeal in the circumstances discussed at paragraphs [314] to [317] of the RFJ.
  14. [99]
    Subparagraph (r) is of no assistance to TMPA’s submissions. Nor does it explain, or justify, why TMPA maintained its position in the appeal in the circumstances discussed at paragraphs [314] to [317] of the RFJ.
  15. [100]
    Subparagraph (s) is of no assistance to TMPA’s submissions. A site inspection is not evidence. The purpose of the site inspection was to understand the evidence, none of which favoured TMPA’s case.
  16. [101]
    I do not accept subparagraph (u). The submission ignores the plain words of the email of 23 August 2022, and the attachments.
  17. [102]
    I do not accept subparagraph (w) is correct. The so-called ‘strong points’ upon which the case rested were articulated in a properly made submission that: (1) responded to a different form of development to that before the Court for consideration; (2) was founded upon an incorrect assumption that Probable Solutions in the planning scheme in relation to height, scale and form applied to the development; and (3) were not supported by evidence that would be unchallenged before the Court. To rely upon the submission as a foundation for refusal was misguided.
  18. [103]
    I do not accept subparagraphs (x) and (y). TMPA received exhibit 36 on 23 August 2022. This exhibit, which is Mr Ovenden’s separate statement of evidence, identified that his position in the appeal had changed and the reason for that change. Whilst exhibit 35, being a further statement of evidence, was provided to the Co-respondents on 14 September 2022, it was not explained how the receipt of that report at that time disadvantaged Ms Lockey, or the TMPA. I pressed Ms Lockey in oral submissions about this point. She was unable to explain, by reference to exhibits 35 and 36, how she was disadvantaged in the conduct of the case.
  19. [104]
    A further point made in subparagraph (y) is that the late receipt of Mr Ovenden’s material meant TMPA was not afforded an opportunity to seek its own town planning expert to support its case. I reject this submission. TMPA were put on notice of Council’s change of position on 23 August 2022. It had from this time to seek town planning advice. There is no evidence it did so.
  20. [105]
    Subparagraph (z) is irrelevant.
  21. [106]
    Subparagraphs (aa), (ff) and (gg) are gratuitous and unnecessary comments. They are also irrelevant.
  22. [107]
    Ms Lockey repeated in her oral evidence that she received a vast amount of new material the first morning of the trial. She could not identify with particularity what the material was, and why it required time to consider.
  23. [108]
    Ms Bowness of Counsel submitted that the material provided to the Co-respondents on the first morning of the trial comprised: (1) an appeal book; (2) a list of conditions, which had been provided to the Co-respondents in advance of the trial; (3) opening written submissions; (4) an updated list of issues; (5) a bundle of authorities; and (6) a list of objections.  I note there was no objection by Ms Lockey to this material when it was tendered, or provided to the Court, during the opening.
  24. [109]
    After reviewing the material identified in items (1) to (6) above, I do not accept subparagraph (bb). The extent to which the material was ‘new’ is limited to the written opening and bundle of authorities. Those documents comprised, in essence, an advanced copy of the Appellant’s written submissions for the end of the trial. By providing the documents at the time of the opening, Ms Lockey was given more time to consider the Appellant’s case – the submissions and authorities could have been provided to her on the last day of the hearing. That the Appellant provided its submissions and authorities to the Co-respondents earlier than would otherwise be the case is to be commended rather than criticised.
  25. [110]
    I do not accept subparagraph (cc). It is an assertion that is not supported by evidence.
  26. [111]
    I do not accept subparagraph (dd). Council’s solicitors were under no obligation to point out that TMPA became liable to costs at any stage of the proceeding. This, in my view, is reinforced, once it is appreciated that Ms Lockey readily conceded in open court that she was aware of the ‘risks’ associated with TMPA’s case; being one involving a refusal without supporting evidence. This concession is to be found in the extract of the transcript for 12 August 2022 at paragraph [48].
  27. [112]
    The matters set out above do not militate against granting an order as to costs. Further, they do not explain, or justify, why TMPA persisted with its refusal case in the circumstances identified at paragraphs [314] to [317] of the RFJ.

TMPA – oral submissions (Council’s application)

  1. [113]
    Ms Lockey made a number of oral submissions during the hearing on 5 December 2022. The points she made were as follows:
    1. (a)
      there were merits issues in favour of refusal that were not traversed during the hearing – the issues were identified after the RFJ were published;
    2. (b)
      Ms Lockey had never struck a circumstance like this where Council had changed its position from refusal to approval;
    3. (c)
      Ms Lockey maintained a refusal was appropriate because it was her view that the impact of the development on neighbours and the surrounding area would be severe;
    4. (d)
      Ms Lockey treated correspondence from the Appellant with suspicion;
    5. (e)
      TMPA’s case was based on three town planning reports that were submitted to Council during the public notification period for the development application; and
    6. (f)
      Ms Lockey submitted that the minor change, and further expert materials, did not address the severe impact that she apprehended for the neighbours and surrounding area.
  2. [114]
    I do not accept that any of these matters explain, or provide justification, for TMPA’s position in the appeal. Its decision to persist with a refusal was frivolous and vexatious for the reasons given at paragraphs [314] to [317] of the RFJ.

Exercise of the discretion

  1. [115]
    Section 5(2)(b) of the Planning Act 2016 recognises that the purpose of the Act is advanced by, inter alia, decision making processes that provide an opportunity for community involvement. An appeal to this Court about an impact assessable development application provides such an opportunity for those members of the community who have made a properly made submission.
  2. [116]
    It has been my experience over many years that community members who participate in appeals before this Court bring with them a valuable asset; local knowledge and experience. Armed with this asset, they have the opportunity to raise local concerns about the town planning impacts of new development. Experience shows that, whilst some concerns raised on a case-by-case basis may not quite hit the mark, the value of community input into the development application assessment process overall is undeniable. One need go no further than the decision of Gold Coast Motorsports Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33 to appreciate the value local residents can bring to a merits appeal before this Court, even where they are self-represented.
  3. [117]
    The opportunity for community members to participate in an appeal such as the present is not unconstrained. The opportunity is constrained by, inter alia, the implied undertaking in s 10(2) of the PECA (to proceed in an expeditious way). As I have said, this implied undertaking requires a party to give careful consideration to the case it is advancing to ensure only the ‘real issues’ in dispute are pursued. The timing of this consideration is not fixed. The merits of a case must be kept under review throughout an appeal.  The need for ongoing review to ensure only the ‘real issues’ are advanced is reflected in a recent observation by Judge Kefford, with which I agree. In Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31 at paragraph [152] her Honour said:

“[152] …A failure to identify the real issues in dispute unnecessarily protracts litigation. It lengthens the time required for the hearing and inappropriately consumes the time judicial officers are afforded to prepare reasons for judgment. This impedes the Court’s ability to dispose of the subject proceeding in a timely manner. It also prejudices the interest of other litigants awaiting reasons for judgment. As has been recognised by the High Court, achieving the most efficient use of court resources is a matter of public interest.”

  1. [118]
    Regrettably, the conduct of this appeal by the Co-respondents, in so far as the question of approval/refusal is concerned, fell well short of what is expected of litigants in this Court. The Co-respondents’ input into the appeal, as I observed at paragraph [317] of the RFJ, resulted in a waste of public and private resources. That waste was unnecessary, and avoidable.
  2. [119]
    In the circumstances, I am satisfied that costs orders ought be made against both Co-respondents in favour of the Appellant and Council. The orders will be limited to the costs incurred during the period 6 September 2022 up to and including 15 September 2022 (being the last day of the trial). The costs will be shared equally. I will certify that the Appellant’s costs shall include two counsel for the period 6 September 2022 up to and including 15 September 2022.
  3. [120]
    I will also order that the Co-respondents pay the costs of these applications, to be shared equally.
  4. [121]
    As to the assessment of costs, in the absence of agreement:
    1. (a)
      the Appellant’s costs between 6 September 2022 to 15 September 2022 will be assessed on the indemnity basis – this should follow having regard to the matters set out at paragraphs [314] to [317] of the RFJ;
    2. (b)
      the Appellant’s costs of this application will be assessed on the standard basis, to reflect that it was not entirely successful;
    3. (c)
      the Respondent’s costs between 6 September 2022 to 15 September 2022 will be assessed on the standard basis – Council did not ask for its costs to be assessed on the indemnity basis; and
    4. (d)
      the Respondent’s costs of this application will be assessed on the standard basis.

Conclusion

  1. [122]
    The orders of the Court are as follows:
    1. (1)
      The eighth Co-respondent by election pay 50% of the Respondent’s costs:
      1. incurred between 6 September 2022 up to and including 15 September 2022, assessed on the standard basis where not agreed; and
      2. of the application in pending proceeding filed 21 October 2022, assessed on the standard basis where not agreed;
    2. (2)
      The twentieth Co-respondent by election pay 50% of the Respondent’s costs:
      1. incurred between 6 September 2022 up to and including 15 September 2022, assessed on the standard basis where not agreed; and
      2. of the application in pending proceeding filed 21 October 2022, assessed on the standard basis where not agreed;
    3. (3)
      The eighth Co-respondent by election pay 50% of the Appellant’s costs:
      1. incurred between 6 September 2022 up to and including 15 September 2022, including the costs of two counsel, assessed on the indemnity basis where not agreed; and
      2. of the application in pending proceeding filed on 24 October 2022, assessed on the standard basis where not agreed;
    4. (4)
      The twentieth Co-respondent by election pay 50% of the Appellant’s costs:
      1. incurred between 6 September 2022 up to and including 15 September 2022, including the costs of two counsel, assessed on the indemnity basis where not agreed; and
      2. of the application in pending proceeding filed on 24 October 2022, assessed on the standard basis where not agreed;
    5. (5)
      The applications in pending proceeding filed 21 and 24 October 2022 are otherwise dismissed to the extent they are inconsistent with the above orders.

Footnotes

[1] SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2022] QPEC 39.

[2]  RFJ, [4].

[3]  RFJ, [5].

[4]  RFJ, [68] to [70].

[5]  RFJ, [6].

[6]  RFJ, [7].

[7]  Footnotes have been omitted.

[8]  Court doc# 140.

[9]  s 59, PECA,

[10] Sincere International Group Pty Ltd v Council of the City of the Gold Coast (No.2) [2019] QPELR 662, [24] and [109].

[11] Sincere (Supra), [26].

[12] Sincere (Supra), [26].

[13] Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd R 271, [35] and [59].

[14] Mudie (Supra), [35] and [59].

[15] Mudie (Supra), [36] and [61].

[16] Mudie (Supra), [36].

[17] Mudie (Supra), [37].

[18]  Schedule 2.

[19]  Court doc #139, Exhibit MJB-01, pp. 15 and 18.

[20]  Court doc# 148, [2].

[21]  Court doc# 148, [2].

[22]  Court doc# 148, [4].

[23]  Court doc# 153.

[24]  Court doc# 154, [2].

[25]  Court doc# 153, [3].

[26]  Court doc# 153, Exhibit ELK-01, pp. 1 to 2.

[27]  Court doc# 154. This was marked exhibit 3 for the purposes of the hearing.

[28] Mudie (Supra), [35] and [59].

[29] Mudie (Supra), [36] and [61].

[30]  Court doc #139, [6], and Exhibit MJB-01, pp. 14-20.

[31]  RFJ, [81] to [83]. That it was an error to approach the probable solutions as if they were inflexible was pointed out in a third offer to settle dated 11 September 2022 (Court doc# 139, Exhibit MJB-1, pp. 64 to 65.

[32]  Paragraphs 3, 4 and 5.

[33]  Paragraph 6.

[34]  Paragraph 7.

[35]  Paragraphs 8 and 9.

[36]  Paragraph 10.

[37]  Paragraph 11.

[38]  Paragraph 13.

[39]  Paragraph 14, 16 and 17.

[40]  Paragraph 15.

[41]  Paragraph 18.

[42]  Paragraph 21.

[43] SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2021] QPEC 75, Rackemann DCJ (delivered ex tempore).

[44]  Paragraphs 22 to 26.

[45]  Paragraph 27.

[46]  Paragraph 28.

[47]  Paragraph 29.

[48]  Paragraph 30.

[49]  Paragraph 31.

[50]  Paragraph 32.

[51]  Transcript, 12 August 2022, T1-2, L48.

[52]  Transcript 12 August 2022, T1-23.

[53]  T1-12 to T1-15.

[54]  T1-16.

[55]  Paragraph 8 of Ms Hay’s response to the Appellant’s application for costs.

[56]  Court doc # 148.

[57]  Paragraphs 7, 11 and 13.

[58]  Paragraph 8.

[59]  Paragraphs 9 and 10.

[60]  Paragraph 12.

[61]  Paragraphs 14 and 15.

[62]  Paragraph 17.

[63] SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2021] QPEC 75, Rackemann DCJ (delivered ex tempore).

[64]  Paragraph s 18 to 21.

[65]  Paragraph 22.

[66]  Paragraph 23.

[67]  Paragraph 24.

[68]  Paragraph 25.

[69]  Paragraph 26.

[70]  Court doc #150, paragraph 2.

[71]  Court doc #150, paragraph 2.

[72]  Court doc #150, paragraph 2.

[73]  Court doc #150, paragraph 3.

[74]  Court doc #150, paragraphs 3 and 4.

[75]  Court doc #150, paragraph 5.

[76]  Court doc #150, paragraph 5.

[77]  Court doc #150, paragraph 6.

[78]  Court doc #150, paragraph 7.

[79]  Court doc #150, paragraph 8.

[80]  Court doc #150, paragraph 9.

[81]  Court doc #150, paragraph 11.

[82]  Court doc #150, paragraph 15.

[83]  Court doc #150, paragraph 16.

[84]  Court doc #150, paragraph 17.

[85]  Court doc #150, paragraph 19.

[86]  Court doc #150, paragraph 21.

[87]  Court doc #150, paragraph 22.

[88]  Court doc #150, paragraph 23.

[89]  Court doc #150, paragraph 25.

[90]  Court doc #150, paragraph 26.

[91]  Court doc #150, paragraphs 26 and 37.

[92]  Court doc #150, paragraph 27.

[93]  Court doc #150, paragraph 27.

[94]  Court doc #150, paragraph 28.

[95]  Court doc #150, paragraph 29.

[96]  Court doc #150, paragraphs 30 and 31.

[97]  Court doc #150, paragraph 32.

[98]  Court doc #150, paragraphs 33 and 36.

[99]  Court doc #150, paragraph 34.

[100]  Court doc #150, paragraph 37.

[101]  Court doc #150, paragraph 38.

[102]  Court doc #150, paragraph 39.

Close

Editorial Notes

  • Published Case Name:

    SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2)

  • Shortened Case Name:

    SDA Property Nominees Pty Ltd v Scenic Rim Regional Council (No. 2)

  • MNC:

    [2022] QPEC 51

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    09 Dec 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chief Executive, Department of Transport and Main Roads v Club Cavill Pty Ltd (No 2) [2011] QPEC 118
1 citation
Jump To
Cite 1 - [2011] QPEC 118
Department of Transport and Main Roads v Club Cavill Pty Ltd (No.2) [2012] QPELR 90
1 citation
Jump To
Cite 1 - [2012] QPELR 90
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council [2021] QPEC 33
2 citations
Jump To
Cite 1 - [2021] QPEC 33
Cite 2 - [2021] QPEC 33
Ko v Brisbane City Council & Anor (No.2) [2019] QPELR 187
2 citations
Jump To
Cite 1 - [2019] QPELR 187
Cite 2 - [2019] QPELR 187
Mudie v Gainriver Pty Ltd[2003] 2 Qd R 271; [2002] QCA 546
7 citations
Jump To
Cite 1 - [2003] 2 Qd R 271
Cite 2 - [2003] 2 Qd R 271
Cite 3 - [2003] 2 Qd R 271
Cite 4 - [2003] 2 Qd R 271
Cite 5 - [2003] 2 Qd R 271
Cite 6 - [2003] 2 Qd R 271
Cite 7 - [2003] 2 Qd R 271
SDA Property Nominees Pty Ltd v Scenic Rim Regional Council [2021] QPEC 75
3 citations
Jump To
Cite 1 - [2021] QPEC 75
Cite 2 - [2021] QPEC 75
Cite 3 - [2021] QPEC 75
SDA Property Nominees Pty Ltd v Scenic Rim Regional Council [2022] QPEC 39
2 citations
Jump To
Cite 1 - [2022] QPEC 39
Cite 2 - [2022] QPEC 39
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPELR 662
5 citations
Jump To
Cite 1 - [2019] QPELR 662
Cite 2 - [2019] QPELR 662
Cite 3 - [2019] QPELR 662
Cite 4 - [2019] QPELR 662
Cite 5 - [2019] QPELR 662
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31
2 citations
Jump To
Cite 1 - [2022] QPEC 31
Cite 2 - [2022] QPEC 31

Cases Citing

Case NameFull CitationFrequency
75 Port Douglas Road Pty Ltd v Douglas Shire Council [2024] QPEC 372 citations
Karagianis v Body Corporate for Northpoint Carseldine Community Titles Scheme 50962 (No 2) [2024] QPEC 202 citations
McEnearney v Council of the City of Gold Coast (No. 2) [2025] QPEC 32 citations
1

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