Dwyer & Dwyer v Sunshine Coast Regional Council [2022] QPEC 7

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Dwyer & Dwyer v Sunshine Coast Regional Council [2022] QPEC 7 PARTIES: WAYNE GEOFFREY DWYER VICKY DWYER (Appellants) v SUNSHINE COAST REGIONAL COUNCIL (Respondent) FILE NO: D166/2019 PROCEEDING: Application in a pending proceeding ORIGINATING COURT: District Court, Maroochydore DELIVERED ON: 3 March 2022 DELIVERED AT: Maroochydore HEARING DATE: Heard on the papers, in accordance with directions given on 9 September 2020. JUDGE: Long SC ORDER: Application in pending proceedings filed on 23 September 2020 is dismissed CATCHWORDS: ENVIRONMENT AND PLANNING – Application – Costs - where building works undertaken without development approval – where appeal against the refusal of a subsequent development application was dismissed– whether s 60(1)(b) of the Planning and Environment Court Act 2016 (Qld) is engaged on the basis of that appeal being, in part, frivolous or vexatious – whether s 60(1)(g) of Planning and Environment Court Act 2016 (Qld) is engaged on the basis that the appellants did not give all the information reasonably required to assess the development application provided. -- 1 of 9 -- 2 CASES: Dwyer & Dwyer v Sunshine Coast Regional Council [2020] QPEC 45 Edis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15 Mudie v Gainriver Pty Ltd (No 2) [2003] Qd R 271 Rintoul v Brisbane City Council [2013] QPEC 45 Sincere International Group Pty Ltd v Council of City of Gold Coast (No 2) [2019] QPEC 9 LEGISLATION: Planning and Environment Court Act 2016 (Qld) ss 59, 60 Planning Act 2016 (Qld) ss 45, 60 COUNSEL: D.M. Favell for the appellants M.J. Batty for the respondent SOLICITORS: Spire Law for the appellants Sunshine Coast Council Legal Services for the respondent [1] By application filed in pending proceedings, on 23 September 2020, the above-named respondent seeks limited costs of an appeal, which was dismissed on 9 September 2020. The dismissal of that appeal came with an order confirming the decision of the respondent to refuse a development application seeking a development permit for material change of use (extension to existing dwelling house – rooftop deck). The circumstances relating to that proceeding are recorded in the published reasons for that decision: Dwyer & Dwyer v Sunshine Coast Regional Council [2020] QPEC 45. [2] For present purposes, it suffices to note that the development application had been submitted to the Council consequently to the receipt of an enforcement notice alleging that unlawful building work had been undertaken on the appellants’ land. In short, the application sought to obtain approval of the proposed development to which that building work had been directed, in respect of the addition of a rooftop deck to the appellants’ residence at Minyama Island, comprising a recreation deck that may be lit at night, with a partly enclosed area accessible by a lift, and mechanically moveable fencing, for use in various entertainment activities, including sports and in particular tennis. -- 2 of 9 -- 3 [3] The respondent’s application for costs is made pursuant to s 60(1)(b) and (g) of the Planning and Environment Court Act 2016 (“PECA”). It is convenient to set out those relevant terms of s 60: “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— …. (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. …. (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;” The application of s 60 is to be seen in the context of s 59 of PECA, which provides: “59 General costs provision Subject to sections 60 and 61, each party to a P&E Court proceeding must bear the party’s own costs for the proceeding. Accordingly, it is necessary for the Respondent to bring itself within at least one of the circumstances set out in s 60(1), so as to enliven the court’s discretionary power to “make an order for costs of a P&E Court proceeding as it considers appropriate”. [4] The basis for its costs application is explained by the respondent as being: “limited to the costs associated with the expert evidence of the town planning and lighting witnesses along with costs on a standard basis, of this application”. It is further expressly asserted that the respondent “does not pursue any legal costs relating to the hearing of the substantive appeal…” and “does not pursue any costs -- 3 of 9 -- 4 related to other areas of expertise (i.e. visual amenity and architecture)”.1 It is then asserted that: “The Council seeks its costs on these limited matters on the basis that: (a) pursuant to section 60(1)(b) of the Planning and Environment Court Act 2016, the appeal instituted by the Appellants, as it related to town planning and lighting issues, was frivolous in that it was conducted without reasonable prospects of success in these areas; (b) pursuant to section 60(1)(g), at no stage during the development application or the proceeding itself, did the Appellants ever provide sufficient information in the areas of town planning and lighting for there to be any possibility of the Appellants’ discharging their onus in the proceeding; and (c) if the Council is successful in respect of (a) and (b) above, it is appropriate for the Council to have its costs of this application on a standard basis.”2 [5] First and in respect of the final proposition in subparagraph (c) above, there is no express contention otherwise by the Appellants and it may be accepted that if the Respondent is successful in establishing the application of either s 60(1)(a) or (g), it may be within an appropriate exercise of the Court’s discretion to award the costs of this application. [6] However, it is first necessary for the respondent to overcome the effect of s 59 of the PECA by establishing that either of the circumstances addressed in s 60(1)(b) or (g) are applicable. [7] The respondent submits that “… the proceeding, commenced by the Appellants, as it related to town planning matters, was frivolous in that it had no prospects of success”, upon the basis that: “(a) The development application material was prepared by the appellants themselves not a qualified town planner; (b) The development application material was seriously lacking in that it failed to adequately consider the relevant provisions of the planning scheme; (c) The development application material produced by the Appellants was deficient in that, as recorded at paragraph 7 of the [Reasons for Judgment], the development application would not have had the effect, even if approved, of regularising the 1 Respondent’s written costs submissions, filed 23/9/20, at [13]-[14]. 2 Ibid at [15]. -- 4 of 9 -- 5 work that had been carried out on the land due to inconsistencies between the development application (and the plans included in it) and what existed on the land as at the date of the hearing; (d) Despite the issues in the appeal, as recorded at paragraph 8 of the [Reasons for Judgment], including issues that necessitated town planning evidence, the Appellants failed to nominate any town planning expert witness; (e) Despite the town planning matters being raised as an issue in the appeal, the cross-examination of Mr Perkins at the hearing of the appeal was limited and as such, did not provide the Appellants with any prospect of discharging their onus in respect of the town planning issues in the proceeding.”3 Accordingly, the Respondent seeks to recoup the expense to which it was put of engaging the town planning expert, Mr Perkins. [8] Further, it is submitted that “identical conclusion would be reached” in respect of lighting issues, upon the basis that: (a) both the Appellants and Respondent nominated expert witnesses in the field of lighting; (b) the opinions expressed by Ms Adams, were recognised in the [Reasons for Judgment] as being ‘comprehensive’, considered matters relevant to the evaluation of lighting impacts (such as the planning scheme and AS428-2019) and ‘persuasively demonstrated by the relevant assessment benchmarks are not met by the Appellants in the circumstances of this proposed development’; (c) the evidence of the nominated witness for the Appellants on lighting issues, Mr Cousins, was described as ‘unconvincing’; (d) there was a demonstrated closeness of association ([Reasons for Judgment] at [64]) between the Appellants and Mr Cousins including that he had previously attended the Dwyer residence for matters unrelated to this appeal, made a submission in support of the proposed development prior to him being engaged as an expert witness and acknowledged that he was also aware that his wife made a submission supporting the proposed development; (e) more significantly, in cross-examination as is recorded in paragraph [65] of the [Reasons for Judgment], Mr Cousins confirmed that (i) no lighting modelling pursuant to AS4282 had been prepared for the proposed development; (ii) no corresponding analysis of the matters made relevant by AS4282 had been undertaken by him in circumstances where such an analysis had been undertaken by Ms Adams; (iii) with the exception of one acceptable outcome, had failed to consider the planning scheme in respect of lighting issues; 3 Respondent’s written costs submissions, filed 23/9/20, at [18]. -- 5 of 9 -- 6 (f) Mr Cousins was argumentative about the effect of photographs produced in the report of Ms Adams, despite those photographs showing obvious lighting impacts from the proposed development beyond the boundaries of the subject site.”4 It is therefore submitted that “on the facts of the case, and the findings included in the [Reasons for Judgment], there was no prospect of the Appellants discharging their onus in respect of the lighting matters in the appeal”. And therefore, the Respondent seeks to “be awarded its costs of this issue on the standard basis”. 5 [9] By way of further summation of the Respondent’s position, it is submitted that: “(a) At not stage, either in this development application, or in the appeal, did the Appellant rely upon town planning evidence from a qualified town planner; (b) The lack of material referred to in (a) above, occurred in circumstances where the town planning issues in the appeal were numerous and significant, as is demonstrated by the extensive reliance upon the evidence of Mr Perkins, in the case of the Respondent as presented at trial and also in the findings of the Court in the [Reasons for Judgment]; (c) The evidence relied upon by the Appellants in respect of lighting, both in the development application and in the context of this appeal, was seriously lacking, for the reasons set out above, due to the deficiencies in the evidence of Mr Cousins.”6 [10] The same circumstances are relied upon in respect of the Respondent’s resort to the application of s 60(g) of PECA. [11] In support of its application, as it is premised upon section 60(1)(b), the Respondent refers to the observations in Rintoul v Brisbane City Council,7 as to the principles to be derived from court of appeal decisions in respect of the meaning of the phrase “frivolous or vexatious”: Mudie v Gainriver Pty Ltd (No 2)8 and Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council.9 [12] For the appellants, particular reference is made to similar observations made in respect of the relevant provisions of PECA, in Sincere International Group Pty Ltd v 4 Respondent’s written costs submissions, filed 23/9/20, at [20]. 5 Ibid at [21]. 6 Respondent’s written costs submissions, filed 23/9/20, at [23]. 7 [2013] QPEC 45 at [13]. 8 [2003] Qd R 271. 9 [2011] QCA 15. -- 6 of 9 -- 7 Council of City of Gold Coast (No 2).10 For present purposes, the following may be noted as adequately encapsulating the relevant principles to be applied: “[27] Sincere contends that the Council’s defence of the appeal was frivolous. The phrase ‘frivolous or vexatious’ as it appears in s 60(1)(b) of PECA is not defined. It is, as a consequence, to be given its ordinary meaning. Williams JA in Mudie v Gainriver Pty Ltd (No 2) 2 Qd R [2003] 271 at [59] held that the words ‘frivolous or vexatious’ in s 7.6(1A) of the repealed Local Government (Planning & Environment) Court Act 1990 were used in everyday language, and there was little doubt as to their ordinary meaning. His Honour held that frivolous meant ‘of little or no value or importance, paltry’; ‘having no reasonable grounds’, and ‘lacking seriousness or sense, silly’. McMurdo P and Atkinson J in the same decision held that the ordinary meaning of ‘frivolous’ was ‘of little or no weight, worth or importance’, and ‘not worthy of serious notice’. [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 interests 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.” [13] As has been noted, as this application is pressed, it is in reference to the word ‘frivolous’ as it appears in section 60(1)(b) of PECA and with a view to engagement of the concept of absence of “reasonable prospects of success”, as that concept appears in the example provided for the subsection. It is to be noted that the assistance which such an example may provide as to the operation of the provision: (a) is not exhaustive; (b) does not limit but extend the meaning of the provision; and 10 [2019] QPEC 9 at [24] – [30]. -- 7 of 9 -- 8 (c) in the event of contextual inconsistency, it is the provision which is to prevail.11 [14] It is clear from the authorities which have been noted that this pre-condition to the exercise of discretion may not be established by pointing to mere lack of success. Further and whilst the necessary establishment of frivolity may encompass a finding of absence of reasonable prospects of success, there must in the end be a finding as to the frivolous nature of the proceeding, so as to enable departure from the general or usual position stipulated in s 59 of PECA. [15] It may be noted that the definition of “P&E Court proceeding” as that concept appears in each of sections 59 and 60 and therefore in Part 6 of PECA, is relevantly defined in the Dictionary in Schedule 1, to mean: “a proceeding, including a part of a proceeding and an application in a proceeding, before the Planning and Environment Court”. [16] However, a difficulty with the approach of the Respondent, is in the identification of some discrete part of the proceeding to which the test in section 60(1)(b) might be applied. For instance, there is no reference to any discrete determination or ruling to which the considerations might be applied. That difficulty is exemplified by understanding that, as discussed in the reasons for judgement in respect of the appeal,12 the decision for the Court pursuant to s 60(3), as particularly informed by s45(5), of the Planning Act 2016 (“PA”), was not necessarily constrained by any determination of any particular issue or matter. [17] The evidence of the witnesses in respect of whom the Respondent seeks to recoup costs, was in truth directed to issues which had been identified by the Respondent as warranting the refusal of the development application which was the subject of the appeal. To the extent that this evidence was accepted, it was of assistance to the determination ultimately reached by the Court. However, all of the matters to which that evidence was addressed were matters for the Court to assess and determine. The Respondent determined to have the advantage of the assistance of those witnesses and does not, for instance, seek to demonstrate how it would be concluded that there was no reasonable prospect of the Appellants’ success, amounting to frivolity, on those issues absent any such evidence. 11 Acts Interpretation Act 1954 (Qld) s 14D. 12 [2020] QPEC 45 at [13]-[20] and [93]-[98]. -- 8 of 9 -- 9 [18] Whilst it might be expected that an appellant bearing the onus in such an appeal would be advantaged in having the assistance of such evidence from appropriate sources, that is not a necessary condition to having any prospects of success, on such issues. Neither would any lack of success on any such issue or issues, necessarily prevent there being prospects of success overall. [19] Therefore, an essential difficulty in seeking to engage s 60(1)(b) of PECA on this limited basis lies in the difficulty in attempting the disengagement of these particular issues from the composite assessment process provided for in s 45(5) of the PA, so as to enable the single decision required of the Court under s 60(3) of the PA. [20] For these reasons, it should be found that on this application, the Respondent has not satisfied the Court that s 60(1)(b) of the PECA is engaged. And, for the same reasons, neither is it appropriate to find that s 60(1)(g) of PECA is engaged. [21] Accordingly, the application in pending proceedings filed 23 September 2020, is dismissed. -- 9 of 9 --