1770 Nominees Pty Ltd & Anor v Gladstone Regional Council (No. 2) [2026] QPEC 3

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: 1770 Nominees Pty Ltd & Anor v Gladstone Regional Council (No. 2) [2026] QPEC 3 PARTIES: 1770 NOMINEES PTD LTD ACN 112 571 730 and MARK MERGARD (applicants) v GLADSTONE REGIONAL COUNCIL (respondent) FILE NO/S: 95/2025 DIVISION: Planning and Environment PROCEEDING: Decision as to costs DELIVERED ON: 13 February 2026 DELIVERED AT: Maroochydore HEARING DATES: Heard on the papers without an oral hearing JUDGE: Cash DCJ ORDERS: The applicants are to pay the respondent’s costs of the application on the standard basis CATCHWORDS: PLANNING AND ENVIRONMENT – COSTS – where application for change of an enforcement order – where respondent’s proposal was substantially successful – whether costs should be ordered under s 61(1) of the Planning Act 2016 – whether costs should be assessed on the standard basis. LEGISLATION: Planning and Environment Court Act 2016 (Qld), s 61(1) CASES: Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No. 2) [2018] QPEC 59; (2019) QPELR 379, [4], [8] APPEARANCES: M Mergard in person and on behalf of 1770 Nominees Pty Ltd M J Batty KC with J Bowness instructed by McCullough Robertson Lawyers for the respondent -- 1 of 4 -- 2 [1] On 15 January 2026 I gave my reasons in an application by 1770 Nominees Pty Ltd and Mr Mergard to change an enforcement order (‘the principal reasons’).1 As to the matters in dispute between the parties, I found in favour of the Council. The issue of costs was left to be decided. Each party has since filed written submissions on the question of costs and no party has requested an oral hearing. In accordance with my earlier indication, I will decide the issue of costs on the papers and without an oral hearing. [2] My conclusion is that 1770 Nominees Pty Ltd and Mr Mergard should pay the Council’s costs of the application on the standard basis. These are my reasons for reaching that conclusion. Is there a power to make a costs order? [3] There is no doubt that the P&E Court has a power to make a costs order in proceedings for an enforcement order or interim enforcement order. That power is described in section 61 of the Planning and Environment Court Act (2016) Qld (‘PECA’) and is enlivened upon the satisfaction of two conditions. First, that the proceeding is an ‘enforcement proceeding’. Secondly, that an enforcement order, or interim enforcement order, has or will be made. [4] An ‘enforcement proceeding’ is a ‘proceeding for an enforcement order or interim enforcement order under the Planning Act’.2 ‘Planning Act’ is a reference to the Planning Act (2016) Qld (‘PA’). ‘Enforcement order’ is defined in section 180 of the PA. It is ‘an order that requires a person to do either or both of the following … (a) refrain from committing a development offence; (b) remedy the effect of a development offence in a stated way.’ [5] A question on the issue of costs is whether the present application, which was to change an enforcement order, is a proceeding for an enforcement order (emphasis added). In this context, the preposition ‘for’ must be concerned with the purpose of the proceeding. [6] Obviously, an application to change an enforcement order can only be made where there is an existing enforcement order. And, as I explained in the principal reasons at [11], the considerations raised by the legislation as being relevant to the making of an enforcement order are similarly relevant to a decision to change an enforcement order. It follows that a proceeding seeking to change an enforcement order is still a proceeding aimed at the making of orders that require a person to refrain from committing a development offence or remedy the effect of a development offence. In this way an application to change an enforcement order is an application for an enforcement order. [7] The legislative context supports this conclusion. Section 181 of the PA deals with the power of the P&E Court about enforcement orders. Subsections (1) to (3) operate to make it clear the power to make an enforcement order may be exercised in a broad range of circumstances. Subsection (4) then provides an express power to cancel or change an enforcement order. The way the power to change an enforcement is regarded as a power about enforcement orders suggests that parliament did not intend 1 1770 Nominees Pty Ltd & Anor v Gladstone Regional Council [2026] QPEC 1. 2 PECA, section 58. -- 2 of 4 -- 3 for an application to change an enforcement order to be treated differently for the purpose of section 61 of PECA. [8] I am satisfied the P&E Court has the power to make a costs order in an application to change an enforcement order. How should the power be exercised in this case? [9] As far as the relevant principles are concerned, I adopt what was said by Williamson KC DCJ in Caravan Parks Association of Queensland v Rockhampton Regional Council Ltd & Anor (No. 2) [2018] QPEC 59; (2019) QPELR 379, [8]. [10] In this case, the relevant considerations are the following. [11] First, the Council were respondents to the application. They were, in effect, brought to court by 1770 Nominees who were the applicant. [12] Secondly, on the contested issues the Council were wholly successful. [13] Thirdly, there was no conduct on the part of the Council that would disentitle them to the benefit of a compensatory costs order. [14] These matters support a conclusion that the Council should have the benefit of an order for the costs of the application. [15] 1770 Nominees has not identified any countervailing considerations which warrant depriving the Council of a favourable costs order in these circumstances. The submissions filed by Mr Mergard assert facts which are either contestable or wrong. For example, it is claimed that compliance with the car park conditions would have been achieved but for a ‘stop work order’ issued by the Council. There was no such ‘order’. On the evidence before me things did not rise about a suggestion in an email by a Council officer. In any event, as I noted at [55] of the principal reasons, 1770 Nominees has had years to implement the car park plans. [16] Mr Mergard’s reference to attempts to seek approval for some of the unlawful development is similarly unpersuasive. There is nothing in the evidence to indicate such efforts were properly made or enjoyed any real prospects of success. [17] Two final matters should be noted. First, the suggestion by Mr Mergard that the Council should be ordered to pay 1770 Nominees’ costs of the proceeding is so fanciful it need not be addressed. [18] The second matter concerns the order proposed by the Council, which is to the effect that the applicants be ‘jointly and severally’ liable for respondent’s costs ‘of and incidental to’ the application, on the standard basis, if not otherwise agreed. There is no need to order the applicants be ‘jointly and severally’ liable for the costs. Absent some other order that will follow automatically.3 Nor is there a need for an order that the costs be ‘of and incidental to’ the application.4 Lastly, the court does not need to specifically allow for the parties to reach some agreement as to costs outside of the order. The Council will have the benefit of an order for costs. Whether they seek to enforce that order or come to some other arrangement with the applicants is a matter for the Council. 3 Collins v Marinovich & Ors (No 2) (2023) 16 QR 50; [2023] QSC 175, [33]; G E Dal Pont, Law of Costs (5th ed, Lexis Nexis Australia, 2021), 341–342 [11.2]. 4 Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271, [17]-[20] -- 3 of 4 -- 4 Order [19] The applicants are to pay the respondent Council’s costs of the application on the standard basis. -- 4 of 4 --