Bucknell & Anor v Townsville City Council & Anor [2022] QPEC 47

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bucknell & Anor v Townsville City Council & Anor [2022] QPEC 47. PARTIES: PETER ADRIAN WENTWORTH BUCKNELL (first applicant) FRANCES O’CALLAGHAN (second applicant) v TOWNSVILLE CITY COUNCIL (first respondent) ACE AVIATION & ENGINEERING PTY LTD ACN 113 025 264 (second respondent) FILE NO: P & E No 89 of 2017 DIVISION: Planning & Environment Court PROCEEDING: Costs Judgment DELIVERED ON: In Chambers – 25 November 2022 DELIVERED AT: Townsville HEARING DATE: Heard on the papers JUDGE: Coker DCJ ORDER: The Applicants pay the costs of the Second Respondent to the proceedings. CATCHWORDS: COSTS – PLANNING AND ENVIRONMENT – where costs of the proceeding are in the discretion of the court but follow the event unless the court orders otherwise – whether circumstances existed warranting departure from the general rule that costs follow the event – whether circumstances existed justifying depriving the successful applicant of its costs of its application LEGISLATION: Sustainable Planning Act 2009 (Qld), S 457, 601. Planning & Environment Court Act 2016 (Qld), S 60, 61. CASES: Southern Downs Regional Council v Kemglade Pty Ltd & Anor [2014] QPELR 436, cited. Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 48, cited. Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, cited. COUNSEL: Lyons. G for the Second Respondent -- 1 of 10 -- 2 SOLICITORS: Wilson Ryan Grose for the Applicant Kier Steele Waldon for the First Respondent Connolly Suthers for the Second Respondent Introduction [1] In this matter the Second Respondent Ace Aviation & Engineering Pty Ltd, seeks an order for the Applicants, Peter Adrian Wentworth Bucknell and Frances O’Callaghan to pay its costs of the proceedings in the Planning and Environment Court. [2] The proceedings were commenced in this Court on 17 May 2017 and that date has some relevance in respect of this application. That relates specifically to S. 457 of the Sustainable Planning Act 2009 (Qld) (‘SPA’), which was amended on 19 May 2017 only 2 days after the filing of the originating application. At the time of filing, S. 457 relevantly provided: 457 Costs (1) Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court. (2) In making an order for costs, the court may have regard to any of the following matters— (a) the relative success of the parties in the proceeding; (b) the commercial interests of the parties in the proceeding; (c) whether a party commenced or participated in the proceeding for an improper purpose; (d) whether a party commenced or participated in the proceeding without reasonable prospects of success; (e) if the proceeding is an appeal against a decision on a development application and the court decides the decision conflicts with a relevant instrument as defined under section 326(2) or 329(2), whether the matters mentioned in section 326(1) or 329(1) have been satisfied; -- 2 of 10 -- 2 (f) if the proceeding is an appeal to which section 495(2) applies and there is a change to the application on which the decision being appealed was made, the circumstances relating to making the change and its effect on the proceeding; (g) whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding; (h) whether a party has acted unreasonably leading up to the proceeding, including, for example, if the proceeding is an appeal against a decision on a development application, the party did not, in responding to an information request, give all the information reasonably requested before the decision was made; (i) whether a party has acted unreasonably in the conduct of the proceeding, including, for example— (i) by not giving another party reasonable notice of the party’s intention to apply for an adjournment of the proceeding; or (ii) by causing an adjournment of the proceeding because of the conduct of the party; (j) whether a party has incurred costs because another party has introduced, or sought to introduce, new material; (k) whether a party has incurred costs because another party has not complied with, or has not fully complied with, a provision of this Act or another Act relating to a matter the subject of the proceeding; (l) whether a party has incurred costs because another party has defaulted in the court’s procedural requirements; (m) whether a party should have taken a more active part in a proceeding and did not do so. -- 3 of 10 -- 3 (3) Subsection (2) does not limit the matters to which the court may have regard in making an order as to costs. (4) Despite subsection (1), if— (a) early in a proceeding the parties to the proceeding participate in a dispute resolution process under the ADR provisions or the Planning and Environment Court Rules 2010; and (b) the proceeding is resolved during the dispute resolution process or soon after it has been finalised; each party to the proceeding must bear the party’s own costs for the proceeding unless the court orders otherwise. (5) If the parties to a proceeding under this part participate in a dispute resolution process under the ADR provisions or the Planning and Environment Court Rules 2010 and the proceeding is not resolved, the costs of the proceeding include the costs of the dispute resolution process. (6) Also, the costs of a proceeding include investigation costs for the following— (a) a declaration under section 456(1)(e); (b) an order made by the court under section 456(7) about a declaration made by the court; (c) an appeal against the giving of an enforcement notice under section 473(1); (d) 601a proceeding mentioned in section 601(1). (7) Investigation costs for subsection (6) include costs the court decides were reasonably incurred by a party to the proceeding relating to investigations or gathering of evidence for the making of the declaration or order, the giving of the enforcement notice or the bringing of the proceeding. (8) Subsections (9) to (15) apply to a proceeding despite subsection (1). -- 4 of 10 -- 4 (9) Costs of a proceeding mentioned in section 601, including an application in a proceeding mentioned in that section, are in the discretion of the court but follow the event, unless the court orders otherwise. (10) If a person brings a proceeding in the court for a declaration against an owner who sought the cancellation of a development approval without the consent of another person or entity mentioned in section 380(2), and the court makes the order, the court must award costs against the owner. (11) If a person brings an appeal under section 477 and the appeal is not withdrawn, the court must award costs against the relevant Minister or local government— (a) if the appeal is upheld; and (b) if the appeal is against a deemed refusal—even if the appeal is not upheld. (12) If a person brings a proceeding in the court for a declaration requiring a designator to give, under section 227, a notice of intention to resume an interest in land under the Acquisition Act and the court makes an order about the declaration, the court must award costs against the designator. (13) If a person brings a proceeding in the court for a declaration and order requiring an assessment manager to give, under section 267, an acknowledgement notice and the court makes the order, the court must award costs against the assessment manager. (14) If the court allows an assessment manager or compliance assessor to withdraw from an appeal, the court must not award costs against the assessment manager or compliance assessor. (15) The court may, if it considers it appropriate, order the costs to be decided under the appropriate procedure, and scale of costs, prescribed by law for proceedings in the District Court. (16) An order made under this section may be made an order of the District Court and enforced in the District Court. -- 5 of 10 -- 5 [3] Upon amendment, 2 days after the original filing, S. 457(9) was removed and there was thereafter no general principle that costs follow the event in enforcement proceedings. The Applicants submit that that is relevant to the courts consideration and should be afforded considerable weight because the amended SPA then mirrored the provisions in the Planning and Environment Court Act 2016 (Qld), which provides that subject to Sections 60 & 61, each party to a Planning & Environment (‘P&E’) Court proceeding must bear the parties own costs of the proceeding. [4] It is submitted by the Applicants that S. 61 of the P&E Court Act is not enlivened and that does not seem to be the case and that S. 60, which is in these terms 60 Orders for costs (1) The P&E Court may make an order for costs for a P&E Court proceeding as it considers appropriate if a party has incurred costs in 1 or more of the following circumstances— (a) the P&E Court considers the proceeding was started or conducted primarily for an improper purpose, including, for example, to delay or obstruct; (b) the P&E Court considers the proceeding to have been frivolous or vexatious;. (c) a party has not been given reasonable notice of intention to apply for an adjournment of the proceeding; (d) a party is required to apply for an adjournment because of the conduct of another party; (e) without limiting paragraph (d), a party has introduced, or sought to introduce, new material; (f) a party has defaulted in the P&E Court’s procedural requirements; (g) the P&E Court considers an applicant for a development application or change application did not give all the information reasonably required to assess the development application or change application; -- 6 of 10 -- 6 (h) the P&E Court considers an assessment manager, referral agency or local government should have taken an active part in a proceeding and did not do so; (i) an applicant, submitter, assessment manager, referral agency or local government does not properly discharge its responsibilities in the proceeding. is not relevant in respect of the determination of this matter. [5] The Applicant’s submit that there is no relevance in this matter arising pursuant to sub-sections (c) - (i) and that subsections (a) & (b) are also not enlivened. For the purposes of these reasons, I would indicate that I agree that there was no improper purpose in starting the proceedings as envisaged in S. 60(a) but rather that there were concerns held by the Applicants as adjoining landholders, as to the use of the property owned by the Second Respondent. [6] Similarly, I accept that the Applicants commenced the proceedings from the perspective of there being genuine concerns held on their behalf as to the Second Respondent’s use of the adjoining land and that the application was neither frivolous nor vexatious. [7] However, whilst that may be the case insofar as the P&E Court Act is concerned, it does not address the situation that arises pursuant to S. 457 and in particular sub- subsection (9) as it existed at the time of the filing of the originating application. It is necessary, of course, to apply the applicable law to the situation. [8] In that respect, I am mindful of S. 999 of the SPA which provides direction in respect of proceedings and specifically costs issues commenced prior to the amendments to S. 457 coming into effect. Relevant here are Sections 999 (1) & (2) which are in these terms: 999 Costs for existing court proceedings (1) This section applies to— (a) a proceeding in the court (an originating proceeding) that has been brought before the commencement; or -- 7 of 10 -- 7 (b) an interlocutory proceeding relating to an originating proceeding that is brought after the commencement. (2) Section 457 as in force immediately before the commencement continues to apply to the proceeding. [9] The effect, clearly of that section is that the version of S. 457 in force when the originating application was filed, is applicable in relation to the consideration of costs and that S. 457(9) specifically referred to the fact that for an enforcement proceeding under S. 601, costs “follow the event, unless the court orders otherwise”. [10] The majority of the relief sought by the applicants was injunctive in nature, in the form of enforcement orders, and the applicants properly acknowledged in their submissions that S. 601 of the SPA referred to enforcement proceedings and more specifically, that the proceedings the subject of the hearing were enforcement proceedings. [11] The argument put on the part of the Second Respondent therefore is that in this situation, there is no reason for the court to act other than upon the presumption that the Second Respondent should be awarded its costs of the proceedings. The Second Respondent argues that this is especially so when consideration is given to the serious nature of the relief sought by the Applicants, and the consequences that would have flown. [12] Reliance was placed by the Second Respondent to the observations of Jones DCJ as his Honour then was in Southern Downs Regional Council v Kemglade Pty Ltd & Anor [2014] QPELR 436, where this was said: “The wording of s 457(9) makes it tolerably clear that what Parliament intended was that in respect of proceedings brought under s 601, costs should follow the event unless the court in the exercise of its discretion, considered that there were sufficient reasons to deprive the successful party of its costs.” [13] The Second Respondent argues further that there are other considerations, favourable to this position including their success in defending the application, S. 457(2)(b). The Second Respondent also relies on S. 457(2)(d) as a matter that should be given consideration favourably in respect of the Second Respondent’s application for costs. -- 8 of 10 -- 8 That argument relates to whether the Applicants commenced the proceedings, ‘without reasonable prospects of success’. [14] In that respect the Second Respondent relies upon the fact the Applicants had made numerous complaints and enquiries to other authorities and organisations without success and that that should have alerted them to the limited prospects of successfully bringing the proceedings. It is noted that such approaches were made by the applicants to the Townsville City Council, the Environmental Protection Agency, the Civil Aviation Safety Authority as well as to the Ombudsman and to the Queensland Police Service. [15] None of those authorities or organisations formed the view that the use of the land owned by the Second Respondent was contrary to the licence held or other lawful requirements. The Second Respondent submits that this should have alerted the applicants to the difficulties with their position and informed them therefore that they did not have reasonable prospects of success. The Second Respondent says that this is more obvious still when the Townsville City Council, who might be seen as, “the proper guardians of public rights”1, supported the position taken by the Second Respondent. [16] What is contended by the Second Respondent is that, for the Applicants to have reasonable prospects of success, they would have to be able to show that it was ‘fairly arguable’ and that, in light of the position taken by other authorities and organisations when approached, that was not the case. [17] The Applicant submits, that such an argument as is put regarding the ‘reasonable prospects of success’ or whether the case for the applicant was, ‘fairly arguable’ do not enliven the claim for costs made by the Second Respondent and I am inclined to agree. The rejection of complaints or approaches made by the Applicants to various authorities and organisations does not mean that there were not reasonable prospects of success. It may have properly alerted the Applicants to the difficulties faced in the proceedings but that is an entirely different consideration to the question as to the prospects of success or whether the case was fairly arguable. 1 See Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 at 366. -- 9 of 10 -- 9 [18] I would note here, that in a similar vein, suggestions by the Second Respondent that the Applicants lack of success in both the Queensland Court of Appeal and in obtaining special leave to appeal to the High Court of Australia does not mean that it would be found that the Applicant did not have reasonable prospects of success or that any case was fairly arguable. What it simply means is that they were unsuccessful in their applications before the court. [19] But that lack of success in the proceedings is a significant factor in the determination of this application for costs. The Second Respondent was totally successful in defending the originating application. At the time that the originating application was filed, S. 457 was in a certain form, and the fact that the section was subsequently amended is not of real consequence in the determination of the matter. [20] At the time, costs of proceedings mentioned in S. 601, as was the case at this time, “… follow the event unless the court orders otherwise”. The discretion as to costs remains with the court but the section is clear, and as indicated by her Honour Bowskill QC DCJ as her Honour then was, “while the success of a party is not a determinative factor it is clearly a relevant and, in some cases, significant consideration”.2 [21] I am satisfied that at the relevant time, costs were enlivened in this proceeding and that such an order should be made. Accordingly, the Applicants should pay the costs of the Second Respondent to the proceedings. 2 Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 48. -- 10 of 10 --