McEnearney v Council of the City of Gold Coast (No. 2)
[2025] QPEC 3
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- McEnearney v Council of the City of Gold Coast (No. 2)[2025] QPEC 3
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McEnearney v Council of the City of Gold Coast (No. 2)[2025] QPEC 3
McEnearney v Council of the City of Gold Coast (No. 2)[2025] QPEC 3
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | McEnearney v Council of the City of Gold Coast & Anor (No. 2) [2025] QPEC 3 |
PARTIES: | SUE-MAREE MCENEARNEY (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) and RIDGE PROPERTIES PTY LTD (ACN 143 878 915) (Co-Respondent) |
FILE NO/S: | 222/23 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application for Costs |
ORIGINATING COURT: | Planning and Environment Court, Southport |
DELIVERED ON: | 28 February 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers, written submissions filed on 20 December 2024 and 3 February 2025 |
JUDGE: | McDonnell DCJ |
ORDER: | The Application is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION FOR COSTS – where the Appellant’s appeal was dismissed and the decision of the Respondent was confirmed – where the Co-Respondent subsequently brought an Application for Costs – whether the proceeding was frivolous or vexatious – whether the submitter Appellant properly discharged her responsibilities in the proceeding |
CASES: | Ko v Brisbane City Council & Anor (No.2) [2018] QPEC 49 McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32 Mudie v Gainriver Pty Ltd (No.2) [2003] Qd R 271 SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2) [2022] QPEC 51 Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9 |
LEGISLATION: | Planning and Environment Court Act 2016 (Qld) ss 10(2), 59, 60(1), Sch 2 Planning Act 2016 (Qld) s 82 |
COUNSEL: | H Stephanos for the Appellant C Hughes KC and L Walker for the Co-Respondent |
SOLICITORS: | Anderssen Lawyers for the Appellant Respondent (excused) RedeMont for the Co-Respondent |
Introduction
- [1]By order of 21 June 2024, the Appellant’s appeal was dismissed and the decision of the Respondent was confirmed.[1]
- [2]The Co-Respondent, by application filed 24 July 2024 (Application for Costs), seeks an order that the Appellant pay its costs of the appeal, or at least a portion of them.[2] The Respondent does not seek to recover its costs in the proceeding, and was excused from the hearing of the application for costs.[3]
- [3]The starting point in this “P&E Court proceeding” is that each party must bear its own costs.[4] Where one or more of the prescribed preconditions in s 60(1) are established, the PECA then confers on the Court an unfettered discretion to award costs with respect to a proceeding, or part of a proceeding.[5] Notably, if one or more of the preconditions are established, it does not necessarily follow that an order for costs will be made.[6]
- [4]The Co-Respondent submits there are two reasons the Appellant ought to be ordered to pay its costs, namely because:
- the appeal was:
- frivolous, in the sense that it did not enjoy reasonable prospects of success at all, or at the very least in respect of those matters conceded by the Appellant after evidence had closed; and
- vexatious, because the Co-Respondent, being the party with the onus, was compelled to address issues that were fundamentally meritless or otherwise conceded by the Appellant (after the evidence had closed) which was productive of serious costs wastage on the part of the Co-Respondent; and
- the Appellant failed to properly discharge her obligations under s 10(2) of the PECA, by failing to confine her grounds for refusal to the true issue in the proceeding, being the non-compliance with the adopted planning controls in respect of building height.
- the appeal was:
- [5]The Appellant opposes this Application for Costs, contending that the appeal was not frivolous and vexatious (in the sense of being “bound to fail”) and that she did properly discharge her responsibilities as a submitter in the proceedings. Further, in the event a pre-condition to the costs power is enlivened, discretionary considerations militate against an award of costs.
- [6]The question that arises for determination is whether either of the nominated circumstances in s 60(1)(b) or s 60(1)(i) are engaged, and if so, whether the Court, in the exercise of its discretion, ought to award costs on a standard basis.
- [7]For the reasons that follow, the application is dismissed.
Background
- [8]The relevant background is set out at [1] to [10] of the RFJ, but it is necessary to repeat some of it for context.
- [9]The Co-Respondent has the benefit of an existing development approval for a mixed-use development comprising 4 buildings up to 16 storeys on land located at Coolangatta on the Gold Coast (Development Approval).[7] The Co-Respondent wished to change the Development Approval. The proposed changes broadly relate to increases in height and changes to the architectural design of Buildings 2 and 3, the removal of Building 4, an increase in retail/commercial floor space and a proposed new use, amongst other proposed changes.[8]
- [10]To facilitate changing the Development Approval, the Co-Respondent made a change application to the Respondent (Change Application). The nature of the changes are characterised as “other than for a minor change”. This engaged s 82 of the Planning Act 2016 (Qld) (PA). Section 82(2) required the Change Application to be administered, assessed and decided by the Respondent as if it were, amongst other things, the original development application inclusive of the changes, but made when the Change Application was made. Thus, the Change Application was treated as if it were impact assessable and required public notification. There were 39 properly made submissions. On 15 June 2023, the Respondent resolved to approve the Change Application.
The appeal
- [11]By Notice of Appeal filed 26 July 2023, the Appellant commenced a submitter appeal against the Respondent’s decision to approve the Change Application.[9]
- [12]On 20 November 2023, the Appellant filed her grounds for refusal which alleged that the Change Application did not comply with numerous provisions of the Gold Coast City Plan 2016 (Version 8) (City Plan) and referred to documents, reports and opinions expressed during the development assessment process for the Change Application.[10]
- [13]To discharge its onus, the Co-Respondent engaged experts to give evidence in the appeal in the fields of town planning, visual amenity and architecture, traffic, amenity and economic need. Lay witness evidence was also adduced by the Co-Respondent. The Respondent nominated experts to give evidence in the fields of town planning, visual amenity and architecture and traffic. The Appellant did not nominate any experts to give evidence in the appeal. She provided a lay witness statement.
- [14]Joint and separate reports were produced during the course of February and March 2024.
- [15]I heard the appeal over five days on 3 and 7 to 10 May 2024. The crux of the Appellant’s case was that the Change Application would be unacceptable having regard to its impacts on character and amenity, including visual amenity, privacy and shadowing. The Appellant’s concerns arose because of the built form and height of the proposed development. At the commencement of the hearing the Appellant identified approximately 110 provisions of the City Plan as justifying refusal of the Change Application.[11]
- [16]On 21 June 2024, I delivered judgement in the appeal, dismissing the appeal and confirming the decision of the Respondent to approve the Change Application.
Was the proceeding frivolous or vexatious pursuant to s 60(1)(b)?
- [17]The phrase “frivolous or vexatious”, or the two individual words contained within, are not defined terms in the PECA. The words are therefore to be given their ordinary meaning. “Frivolous” has been held to mean “of little or no value or importance, paltry”; “having no reasonable grounds”, and “lacking seriousness or sense, silly”. “Vexatious” has been held to mean “vexation, vexing, annoying” and “productive of serious and unjustified trouble and harassment”.[12]
- [18]In considering the meaning of “frivolous” Williamson KC DCJ observed in Sincere:
“[28] The onus of proving frivolity lies with the applicant for costs. It is a high standard to be met, and will turn on matters of fact and degree, including public policy considerations and the interest of justice. Relevantly, something much more than lack of success needs to be shown to engage s. 60(1)(b) of PECA.
[29] Sincere allege that the conduct of the Council’s defence, or resistance to the appeal, was frivolous because it had no reasonable prospects of success. This allegation seeks to take up the example that follows s. 60(1)(b) in PECA, which speaks of a proceeding that was started, or conducted without reasonable prospects of success.
[30] The phrase “without reasonable prospects of success” has been held to equate its meaning with “so lacking in merit or substance as to be not fairly arguable”. A case which is not fairly arguable is one that is regarded as “bound to fail”. This is a concept that falls appreciably short of “likely to succeed”. A lack of success does not mean that a proceeding had no reasonable prospects, or lacked merit.” (footnotes omitted)
- [19]I respectfully adopt and apply this approach.
- [20]The Co-Respondent submitted that due to the Appellant’s conduct by:
- not calling expert evidence;
- her cross-examination eliciting no concessions of substance as to the merits;
- raising benchmarks irrelevant to the Change Application;
- putting aside the question of height, pursuing non-compliance with quantitative aspects of the acceptable outcomes, with which compliance is not mandatory;
- failing to address non-compliance with each of the assessment benchmarks she put in issue; and
- failing to establish how, and in what way, she would be adversely affected by the change,
it was open to the Court to conclude that the appeal was, at least with respect to those matters not directly relevant to the exceedance of the building height overlay map, frivolous.
- [21]I am not persuaded that the proceeding was frivolous or vexatious for the reasons that follow.
- [22]The Change Application gave rise to admitted non-compliances with City Plan, in respect of both building height and density, requiring an exercise of the Court’s discretion to determine whether those non-compliances ought to, in the particular circumstances of the case, warrant a refusal of the change application.[13]
- [23]As observed in the RFJ with respect to height:[14]
“Ordinarily, such a non-compliance would warrant significant weight in the exercise of the Court’s discretion about whether to approve a development application.”
- [24]The weight to be given to, and the consequences of, the non-compliance was a matter to be determined by the Court. Matters balanced by the Court to determine the significance of this non-compliance included factual matters relating to the site, including its history,[15] the extent of exacerbation of the existing non-compliance,[16] how the City Plan’s Strategic framework ought to be applied,[17] the statutory framework for the Change Application,[18] the significance of the non-compliance when considered against other provisions of the City Plan,[19] the planning rationale for the height designation in the Strategic framework,[20] and the evidence of the experts in relation to character and amenity. This involved consideration of the evidence about the existing and emerging character of the area, built form and scale, visual amenity and traffic. In support of the relevant matters favouring approval, the Co-Respondent relied upon this evidence as well as the need and architectural merit evidence.
- [25]Thus, it was necessary that the Co-Respondent adduce evidence to address these issues in order that the Court exercise its discretion in the Co-Respondent’s favour. In my view, it is unlikely that an earlier concession by the Appellant of the issues conceded at the conclusion of the evidence would have substantially altered the scope and nature of the evidence required to be adduced by the Co-Respondent for the reasons contained at [24] and [31] to [32].
- [26]Further, the Appellant’s conduct was not the subject of adverse findings. That the Appellant did not call evidence is not determinative. She participated in the identification of issues, including identifying changes to those issues she considered relevant, revised the issues in the course of the proceedings, and provided lengthy written submissions. The Appellant cross-examined the expert witnesses consistently with her approach that the experts’ assessment was undertaken on a flawed basis. This was not the case in SDA, where the respondents to that application for costs did not cross-examine any expert witnesses at the hearing.[21] SDA can be distinguished on that basis.
- [27]For these reasons, I am not satisfied that the pre-condition in s 60(1)(b) of the PECA is made out.
Did the Appellant properly discharge her responsibilities in the proceeding pursuant to s 60(1)(i)?
- [28]The Appellant is a “submitter” as defined in schedule 2 of the PA. She made a properly made submission in respect of the Change Application the subject of the appeal. Section 60(1)(i) of the PECA will be engaged where it is demonstrated that, as a submitter, the Appellant did not properly discharge her responsibilities in the proceeding.
- [29]I respectfully adopt and rely upon Williamson KC DCJ’s observations regarding the conduct of submitters in a Planning and Environment Court appeal. His Honour said in Ko v Brisbane City Council & Anor (No.2):[22]
“[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.”
- [30]The Co-Respondent submits that s 60(1)(i) is enlivened because the Appellant did not properly discharge her duties imposed by s 10(2) of the PECA as she pursued non-compliance with 112 provisions of the City Plan, thereby maintaining issues unsupported by contrary evidence, until after the close of the evidence.
- [31]While a large number of provisions of the City Plan were raised by the Appellant, these provisions raised issues of:
- height;
- bulk, scale and character, including amenity and mix of uses; and
- traffic.
- [32]At a pre-trial review the Appellant indicated that she did not intend to pursue an issue previously identified. The issues were further narrowed during the course of the hearing.[23] Issues were again narrowed at the conclusion of the evidence. By the conclusion of the hearing a reduced number of provisions remained in dispute, but the issues remained height, bulk, scale and character. Traffic, as it was relevant to scale and intensity, was also considered by the Court. In my view, while the provisions in issue reduced, the evidence required to be adduced to address these reduced issues in dispute remained largely unchanged. The evidence about each of these issues was addressed in the RFJ. The evidence was also applicable to the Court’s consideration of the relevant matters in support of approval.
- [33]The Co-Respondent further submits that to properly comply with the obligations under s 10(2) of the PECA, the Appellant would have received the expert reports provided to her and properly confined her case to those matters about which she could give admissible evidence.
- [34]I do not accept this. The Appellant was not required to adduce any evidence. Having accepted that there were non-compliances with respect to height and density, evidence was required in order that the Court exercise its discretion. The Co-Respondent was required to adduce evidence to discharge the onus.
- [35]The Appellant actively participated in the hearing, cross-examining witnesses and providing lengthy witness submissions, and actively reviewed the issues and reduced the provisions of the City Plan in dispute. These steps were undertaken in the discharge of her obligations under s 10(2) of the PECA.
- [36]I am not persuaded that the Appellant failed to discharge her responsibilities in the proceeding.
Conclusion
- [37]I am not persuaded that the proceedings were frivolous or vexatious or that the Appellant failed to properly discharge her responsibilities in the proceeding. The jurisdiction to award costs does not arise.
- [38]The application is dismissed.
Footnotes
[1] McEnearney v Council of the City of Gold Coast & Anor [2024] QPEC 32 at [137] (RFJ).
[2] The Co-Respondent no longer presses for indemnity costs; Court Document No. 44, [7].
[3] Order made 10 December 2024, Court Document 43.
[4] Planning and Environment Court Act 2016 (Qld), s 59 (PECA).
[5] Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPEC 9, [24] (Sincere)
[6] SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2) [2022] QPEC 51, [10] (SDA)
[7] RFJ, [3].
[8] RFJ, [6].
[9] Court Document 1.
[10] Court Document 15.
[11] Exhibit 8.03.
[12] Mudie v Gainriver Pty Ltd (No.2) [2003] Qd R 271, [35], [36], [59] and [61].
[13] RFJ, [130].
[14] RFJ, [52].
[15] RFJ, [53]–[54], [58].
[16] RFJ, [55].
[17] RFJ, [56].
[18] RFJ, [57].
[19] RFJ, [59]–[62].
[20] RFJ, [63]–[64].
[21] SDA, [5].
[22] [2018] QPEC 49, [42]–[44].
[23] T2 – 22–T2 – 25 and T3 – 37–T3 – 38.