Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No.2) [2018] QPEC 59 [2019] QPELR 379

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor (No.2) [2018] QPEC 59 PARTIES: CARAVAN PARKS ASSOCIATION OF QUEENSLAND LTD (ACN 601 233 612) (Applicant) v ROCKHAMPTON REGIONAL COUNCIL (First respondent) and STATE OF QUEENSLAND (Second respondent) FILE NO: 4776/17 DIVISION: Planning and Environment PROCEEDING: Application for Costs ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 12 December 2018 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers with written submissions received 26 November 2018 and 3 December 2018 JUDGE: Williamson QC DCJ ORDER: 1. The First respondent pay the Applicant’s costs of the proceeding, to be assessed on the standard basis. CATCHWORDS: PLANNING AND ENVIRONMENT – COSTS – where application for declaration and enforcement orders about the use of premises for overnight parking of RVs in a public park – where Applicant substantially successful – whether costs should be ordered under s.61(1) of the Planning Act 2016 – whether costs should be limited to 50 per cent, assessed on the standard basis. LEGISLATION: Planning Act 2016, s.180 Planning and Environment Court Act 2016, ss.11 and 61 CASES: Knight v FP Special Assets Ltd (1992) 174 CLR 178 -- 1 of 7 -- 2 Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486 Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 196. Oshlack v Richmond River Council (1998) 193 CLR 72 Cox v Brisbane City Council (No.2) [2014] QPELR 92 COUNSEL: M Batty for the Applicant N Loos for the First respondent SOLICITORS: McCullough Robertson for the Applicant Holding Redlich for the First respondent [1] On 15 November 2018, I granted enforcement orders in this proceeding and published my reasons for doing so. At paragraph [133] of the reasons for judgment, I invited submissions from the parties with respect to the sole remaining issue to be determined, namely the question of costs1. This issue is to be determined on written submissions provided for each party. [2] The written submissions reveal that Caravan Parks Association of Queensland Ltd (CPAQ) contends it should be awarded its costs of the proceeding on the standard basis. In response, the council submits it is appropriate for a costs order to be made against it, but contends the order should be limited to 50% of CPAQ’s costs of the proceeding, assessed on the standard basis. [3] The issue of costs is to be determined in the context that it is uncontroversial between the parties that the enforcement orders made on 15 November 2018 engage s.61(1) of the Planning and Environment Court Act 2016 (the PECA), which states: “Orders for costs for particular proceedings (1) If, for an enforcement proceeding, the P&E Court makes an enforcement order or interim enforcement order against a person, it may award costs against the person.” [4] Section 61(1) of the PECA confers a power on the court to award costs where two preconditions are satisfied. First, it must be established that the proceeding before the court in which costs are sought is an ‘enforcement proceeding’. Second, it must be established that the court will make, or has made, an enforcement order or interim enforcement order in the proceeding. [5] With respect to the first precondition, an ‘enforcement proceeding’ is defined in s.58 of the PECA as including a proceeding for an enforcement order under the Planning Act 2016 (the PA). An enforcement order is defined by reference to s.180(2) of the PA. CPAQ’s Originating Application sought orders pursuant to this provision. I am therefore satisfied the proceeding before the court is an enforcement proceeding for the purposes of s.61(1) of the PECA. 1 The prayer for relief in the Originating Application includes an order for costs. -- 2 of 7 -- 3 [6] As to the second precondition referred to in paragraph [4] above, I am satisfied that enforcement orders have been made in this proceeding for the purposes of s.61(1) of the PECA. So much is clear from paragraphs [69] to [72], and [128] of the reasons for judgment published on 15 November 2018. Those parts of the reasons for judgment identify that orders were made in this proceeding under s.180 of the PA which are, by definition, enforcement orders. [7] The power to award costs in this proceeding under s.61(1) of the PECA is enlivened. This provision provides no guidance as to when, and how, the power, once enlivened, is to be exercised. It contains no words of limitation. It is, as a consequence, necessary to have regard to the principles applicable to the interpretation of a provision such as s.61(1) of the PECA. Those principles are well established and were discussed by Gaudron J in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 2052, where her Honour said: “It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.” [8] The principles relevant to the interpretation of s.61(1) of the PECA dictate that the power to award costs, once enlivened, is to be exercised judicially. It is a discretion that is to be exercised in accordance with legal principle. Principles relevant to the exercise of the discretion will include (but are not limited to) the following matters, namely: (a) the discretion is to be exercised consistent with the subject matter, scope and purpose of the legislation3; (b) the discretion is to be exercised without any presumption that costs should follow the event4; (c) the discretion is to be exercised without any presumption there is qualified protection against an adverse costs order5; and 2 Cited with approval in Mansfield v Director of Public Prosecutions for Western Australia [2006] 226 CLR 486, 492 [10]. 3 Oshlack v Richmond River Council [1998] 193 CLR 72, 81 (‘Oshlack’). 4 Ko v Brisbane City Council (No.2) [2018] QPEC 49 [33]. 5 Ko v Brisbane City Council (No.2) [2018] QPEC 49 [33]. -- 3 of 7 -- 4 (d) the primary purpose of an award of costs is to indemnify the successful party, and not to punish an unsuccessful party6. [9] Turning then to the written submissions, CPAQ advanced a number of points in support of its contention that the council should pay its costs of the proceeding, assessed on the standard basis. The submissions can be reduced to three propositions: (1) CPAQ has been substantially successful in the proceeding; (2) the facts and circumstances of the case are such that CPAQ had no alternative but to commence and prosecute the proceedings; and (3) the council’s conduct leading up to, and during the proceeding, was not consistent with its position as a local government who would be expected to comply with the planning law it is charged to uphold. [10] With respect to the first proposition, I accept CPAQ was substantially successful in this proceeding. This was conceded by the council in its written submissions. [11] The level of success enjoyed by CPAQ can be measured by reference to the questions posed in paragraph [6] of the reasons for judgment published on 15 November 2018. The questions were stated as follows: “[6] The dispute between the parties calls for an examination of the following issues: (a) What is an ancillary use? (b) Is RV accommodation an ancillary use of Kershaw Gardens? (c) Has s.163 of the PA been contravened and a development offence committed? (d) Has s.165(a) of the PA been contravened and a development offence committed? And (e) What relief should be granted?” [12] The question stated in subparagraph (a) above was not the subject of any material controversy between the parties. The dispute between the parties focussed on the questions stated in subparagraphs (b) to (e). The critical question in the case was that stated in subparagraph (b). It is the answer to this question that largely determined the outcome of the proceeding. CPAQ was successful in persuading the court that this question should be answered in its favour, namely resolved in the negative. [13] CPAQ was successful in relation to all of the questions posed in subparagraphs (b) to (e) above, save for subparagraph (c). This does not however diminish the success it enjoyed overall. The question posed in subparagraph (c) was one of two alternative arguments advanced in support of the relief sought under s.180 of the PA. The second alternative argument was posed in subparagraph (d). It was this second argument that was successful, and led to the court making enforcement orders in favour of CPAQ. 6 Oshlack [1998] 193 CLR 72, 97 [67]. -- 4 of 7 -- 5 [14] The success enjoyed by CPAQ in relation to subparagraph (e) above calls for some closer examination. The relief sought in the Originating Application included a declaration and consequential orders, and enforcement orders. CPAQ was unsuccessful in obtaining the declaratory and consequential relief it sought. This was due to questions of utility. Once CPAQ had established an entitlement to the enforcement orders it sought, there was no need for a declaration and consequential orders. The declaratory relief, coupled with the consequential relief sought would have served no utility or practical purpose. It would have represented, in practical terms, a repetition of the enforcement orders that were granted. [15] In such circumstances, the partial success achieved by CPAQ in relation to subparagraph (e) does not diminish from the overall success enjoyed by it in the proceeding. The main point in the proceeding was determined in CPAQ’s favour. The character of relief obtained reflects this success. [16] The second proposition advanced on behalf of CPAQ is that it had no choice but to commence and prosecute this proceeding. I am satisfied the material before the court establishes this submission should be accepted. A review of the material reveals CPAQ, and its solicitor, squarely raised with the council that the RV accommodation use was unlawful. The council was asked directly in correspondence whether it would cease the use, and apply to itself for the required development approvals. [17] In response to correspondence from CPAQ, and its solicitor, the council (through its officers) made it clear the use the subject of this proceeding would not cease, because it was a lawful use. It is to be noted that only one reason was relied upon by council officers to contend the use was lawful. This reason was articulated in correspondence between the parties. In summary terms, that reason is set out in an extract of the committee’s meeting minutes of 1 July 2014. The extract is contained in paragraph [31] of the reasons for judgment published on 15 November 2018. The council did not contend before this court that the advice referred to therein was correct7. [18] The position adopted by the council prior to, and during this proceeding, meant that CPAQ had no option but to commence this proceeding and prosecute it to achieve the result it has. This has come at a cost that would not have been incurred had the council acted in accordance with the planning law it has a duty to up hold in its local government area. [19] The success enjoyed by CPAQ, coupled with the fact that it had no option but to commence this proceeding, establishes a compelling basis to make the costs order sought by CPAQ. This compelling reason is only reinforced once it is appreciated the council does not suggest that CPAQ has engaged in ‘disentitling conduct’ in the lead up to, commencement of, or conduct of the proceeding. [20] The third proposition advanced by CPAQ involves an attack on the council’s conduct leading up to and during this proceeding. I have some misgivings about the council’s conduct leading up to and during the proceeding, however, it is unnecessary for me to make any specific findings about this. The matters stated in paragraph [19] above are, in my view, more than sufficient to establish that an order as to costs should be made against the council, and that order should not be reduced to 50%. 7 As recorded at paragraph [32] of the reasons for judgment published on 15 November 2018. -- 5 of 7 -- 6 [21] Turning to the council’s written submissions, it concedes the discretion to make an order as to costs should be exercised favourably to CPAQ, but should be no more than 50 % of its costs, assessed on the standard basis. It was submitted there were six features of the case that warrant an order for only 50% of the costs incurred, namely: (a) there is no statutory presumption that a party successful in obtaining enforcement orders is entitled to its costs; (b) the proceeding involved factual and legal questions that were not entirely resolved in the Applicant’s favour; (c) the use of the land that the court orders operate to restrain was not the subject of a finding that it had caused adverse amenity impacts; (d) the Applicant’s evidence put a focus on past examples of hygiene and amenity difficulties which ultimately did not feature as determinative points in the court’s reasons; (e) the council operated and offered the use of service to the public free of charge and was therefore not before the court attempting to defend any economic interests other than a general economic interest which was directed at the benefit of the public at large; and (f) while the council’s argument was unsuccessful, the council’s conduct in the proceeding was reasonable by analogy with the reasoning of the court in relation to a merits appeal in Cox v Brisbane City Council (No. 2) [2014] QPELR 92, 97 [22]. [22] I do not accept that the six features of the case emphasised by the council, even if established without qualification, would warrant an order for only 50% of the costs. This is because the considerations are insufficient to outweigh: (1) that CPAQ has enjoyed substantial success in this proceeding, in circumstances where it had no choice but to pursue the proceeding; and (2) there is an absence of disentitling conduct by CPAQ in the lead up to, the commencement of, and in the prosecution of this proceeding. [23] Further, I am not satisfied that the six features of the case emphasised by the council can be accepted without qualification or, indeed, have any persuasive force in the exercise of the discretion to limit an order as to costs to 50%. This is so for the following reasons. [24] First, the six features (save for item (b)) emphasised do not establish a basis for the figure of 50%. It smacks of a figure that has been plucked from thin air. It bears no relationship to the outcome of the proceeding, and the orders made on 15 November 2018. [25] Second, I am not satisfied the submissions identified in subparagraphs (a), (c), (d) and (e) are relevant to the central issue to be determined, namely whether costs should be limited to 50%. The submissions are more appropriately directed at a different question, namely whether any costs should be ordered. The council concedes this question should be answered in the affirmative. -- 6 of 7 -- 7 [26] Third, the submission identified in subparagraph (b) above is correct to a point, but it does not follow that an order as to costs should be limited to 50%. As I have already said, the main point in the proceeding was determined in CPAQ’s favour. The character of relief obtained reflects this success. The fact that CPAQ succeeded on some arguments, and not others, does not warrant an order limiting costs to 50%8. [27] Fourth, I have difficulty in accepting the submission in subparagraph (f) above. It is true the council relied upon an expert in this proceeding and assisted the court with submissions. Those matters point to the council acting in a way which is reasonable. However, that is not the complete picture. A party’s conduct needs to be assessed more broadly than by reference to a small collection of examples that paint it in a good light. In this context, there are other features of the council’s conduct when considered more broadly that paint a different picture to that submitted in subparagraph (f) above, namely: (a) the council failed to make an appropriate concession in relation to s.165 of the PA, being a matter to which I referred in paragraph [89] of my reasons for judgment dated 15 November 2018. The failure to make the concession was, as I said, regrettable, unexplained, and contributed significantly to the length of the reasons for judgment; and (b) the council’s defence in the proceeding was inconsistent with the position advanced in correspondence with CPAQ prior to the commencement of the proceeding. The council did not contend before this court that the use was lawful as was suggested in earlier correspondence between the parties. No explanation was offered for this change in position, and when the change in fact occurred. It was the earlier stated position that left CPAQ with no option but to commence these proceedings, and incur costs in prosecuting it to final orders. [28] Accordingly, it is ordered that the First respondent pay the Applicant’s costs of the proceeding, to be assessed on the standard basis. 8 By analogy, see Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 196, [6]. -- 7 of 7 --