Drywound Pty Ltd v Lockyer Valley Regional Council & Ors [2017] QPEC 4 (2017) QPELR 274

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Drywound Pty Ltd v Lockyer Valley Regional Council & Ors [2017] QPEC 4 PARTIES: DRYWOUND PTY LTD (applicant) v LOCKYER VALLEY REGIONAL COUNCIL (respondent) and GORDON FRANK CLARIDGE (first co-respondent by election) and SCOTT DAVID PETRIE (second co-respondent by election) and KEVIN JOHN BOWE (third co-respondent by election) and ROSS DESMOND STUHMCKE (fourth co-respondent by election) and KEEP LOCKYER RURAL INC. (sixth co-respondent by election) and KYM ELLEN NICHOLSON (seventh co-respondent by election) and ROBERT ALLEN BROWN -- 1 of 14 -- 2 (eighth co-respondent by election) FILE NO/S: 2652 of 2015 PROCEEDING: Application for costs DELIVERED ON: 28 February 2017 DELIVERED AT: BRISBANE HEARING DATE: 17 February 2017 JUDGE: Rackemann DCJ ORDER:  The appellant’s application for costs is dismissed.  The appellant is to pay the respondent’s costs of the appellant’s costs application assessed on a standard basis.  The appellant is to pay the co-respondent’s costs of the proceeding from 14 December 2016, assessed on the standard basis.  The appellant is to pay the respondent’s costs of the proceeding: o from 26 September 2016 to 13 December 2016 on the standard basis; and o from 14 December 2016 on an indemnity basis.  The respondent’s application for costs is otherwise dismissed.  The above costs exclude the costs the subject of existing orders. CATCHWORDS: PRACTICE AND PROCEDURE - COSTS – where court asked to exercise its general discretion in relation to costs – where appeal dismissed – where the respondent relied on noise impacts on a particular lot which had not been identified as one of those for which there was a concern until after the commencement of these proceedings – whether the appellant should recover costs – where appeal not expeditiously prosecuted – whether appellant ought be ordered to pay the respondent’s costs of the proceeding – where appellant continued the appeal after being put on notice that the respondent would be relying on impact on a particular lot – whether the appellant ought be ordered to pay the respondent’s costs from that point – where appellant subsequently ceased communicating with its solicitor, reviewed its position and decided not to proceed but did not -- 2 of 14 -- 3 give the other parties notice – whether the appellant ought be ordered to pay the costs of the other parties for that period – whether those costs ought be assessed on an indemnity basis COUNSEL: Michael A Williamson for the respondent T S Quirk (solicitor) and E Leong (solicitor) for the first, second, third, fourth, seventh and eighth co-respondents Mr C Steer as agent for the appellant SOLICITORS: McCullough Robertson for the respondent Thynne + Macartney for the first, second, third, fourth, seventh and eighth co-respondents -- 3 of 14 -- 4 [1] This applicant appeal was against the respondent’s refusal to grant a development permit for a proposed motocross training facility on land in a rural area at Adare. The grounds of refusal and the issues in the appeal included the likely noise impact of the proposal. [2] The appeal was instituted in May 2015 and its hearing commenced in October 2016, but was adjourned as a consequence of changes to the development proposal. The hearing was to resume on 23 January 2017. On that day, the appeal was dismissed on the limited basis that the appellant no longer wished to prosecute the appeal. What remains for determination are cross-applications for costs. [3] By reason of s 457(1) of the Sustainable Planning Act 2009 (Qld) (“SPA”) this court has a general discretion in relation to costs. That discretion is broad, but is to be exercised judicially. There is no presumption that costs ought to follow the event or that there is some qualified protection against an adverse costs order. Section 457(2) of SPA sets out a non-exhaustive list of factors to which the court may have regard. [4] Despite being wholly unsuccessful in its lately abandoned appeal, the appellant seeks an order that the respondent pay its costs. The basis of that application is, in effect, its complaint that the respondent “changed the goal posts” late in the proceedings in relation to the noise issue, by relying upon the potential noise impacts at a nearby vacant, but potentially developable, lot (Lot 209) which had not, prior to August 2016, been identified as a noise sensitive receptor. The appellant explained its ultimate abandonment of the appeal by reference to its inability to demonstrate compliance with noise criteria at Lot 209. -- 4 of 14 -- 5 [5] It should be noted, at the outset, that the potential for the proposal to have adverse noise impacts was not the only issue in the case. There was a range of grounds for refusal, including allegations of conflict with the Planning Scheme. It should not be assumed, for present purposes, that the appeal would have been successful subject only to a successful resolution of the noise issue. [6] Further, it should be noted that the respondent, at no time, represented to the appellant that potential amenity impacts of its proposal were or could be demonstrated to be acceptable. To the contrary, the Council’s case, at all relevant times, was that the proposal had not been demonstrated to be acceptable, even having regard to improvements which were made to the design of the proposal in the course of the appeal. [7] In an affidavit in support of the application for costs, the appellant’s director, Mr Steer, claimed that the respondent’s consultant acoustic expert, Mr Walker, had “provided an inaccurate or misleading report in April 2015 which was the primary basis for me to lodge my appeal and incur significant costs.” The report to which he refers was a peer review, conducted by way of a desktop appraisal, of the adequacy of the noise reports submitted in support of the development application. It was not a detailed acoustic assessment. It made some recommendations and recorded the author’s view that, until the recommendations were satisfactorily addressed, there were sufficient reasons, in terms of noise, for the Council to refuse the development application. The complaint appears to be based on the fact that Mr Walker did not then raise the potential impacts on Lot 209 as one of the matters to be addressed. [8] The claim that Mr Walker’s report was the “primary basis” for the lodgement of the appeal is false because, whilst Mr Steer apparently had a report and recommendation to the council which referenced Mr Walker’s peer review, he acknowledged on the -- 5 of 14 -- 6 hearing of the application for costs, that a copy of Mr Walker’s report was not provided to the appellant until well after the appeal had been instituted. Further, it should be noted that the report was commissioned by the council, for its assistance. It was not for the purposes of advising the appellant. The appellant had the benefit of access to its own lawyers and consultants. [9] It may be accepted that there was no concern specifically about Lot 209 raised at the time that the development application was decided1 nor, indeed, in the course of preparation for the appeal until August 2016. Its emergence was, it seems, sparked by a joint enquiry by the acoustic experts, rather than because of any cynical exercise on the part of the Council. In particular, the acoustic experts, in a conduct report of 2 August 2016, sought clarification as to whether, in the absence of the construction of a residence on Lot 209, it should be considered as a “sensitive receptor” for the purposes of the assessment of impact and, if so, whether the whole or only part of the lot should be considered. The appellant ought to have been considering the implications of Lot 209 from that point. The parties jointly responded, on 19 August 2016, relevantly as follows: “The parties agree that in the absence of a construction of a residence on lot 209, that lot 209 ought not be considered to be a ‘sensitive receptor’ as per Schedule 1 (Column 1) of the Environmental Protection (Noise) Policy 2008 (Qld) (“EPP Noise”). However, subject to compliance with or assessment against relevant planning instruments and/or any other applicable legislation, lot 209 or part thereof may be capable of accommodating a ‘sensitive receptor’ as 1 The report and recommendation to the Council showed the closest residence as 1.3 kilometres away. -- 6 of 14 -- 7 per Schedule 1 (Column 1) of the Environmental Protection (Noise) Policy 2008. In order to avoid any unwarranted delay, the parties agree that the experts should consider lot 209 from the perspective that lot 209 is not a ‘sensitive receptor’, and from the perspective that lot 209 (or part thereof) is a ‘sensitive receptor’ listed in Schedule 1 of the EPP Noise. …in order to avoid any unwarranted delay, and for the purpose of the alternate position in the joint report, the parties agree that the whole lot should be assessed as a ‘sensitive receptor.’” [10] The acoustic experts then, in accordance with that joint direction, considered noise impacts on Lot 209. The results of that consideration can be seen in their three joint reports, dated 12 September 2016, 11 October 2016 and 16 December 2016 respectively. Those reports evidence that the proposal would fail relevant criteria at that lot. [11] In the first joint report of the noise experts, Mr Brown and Mr Walker noted that, irrespective of whether certain additional noise controls were implemented, the noise modeling conducted to that date had not established that the criteria for which they contended would be met “at nearby residences or over the central and western portions of Lot 209…”. On 19 September 2016, the Council’s solicitors wrote to the appellant’s solicitors inviting it to withdraw its appeal in light of predicted impact at, amongst other locations, Lot 209. It may be noted that, although the owner of lot 209 was not a submitter at the time the development application was publically notified, he ultimately provided a statement (which was tendered by the represented co- -- 7 of 14 -- 8 respondents by election), which made clear his opposition to the proposed development. [12] Whilst the appellant’s consternation at being confronted with the impacts of its proposal on Lot 209 is understandable, it is an issue which emerged as one of potential relevance in the course of the joint meeting process and to which the parties responded. That is not a particularly unusual circumstance. At least two things may be noted. First, the joint meeting process is engaged in by the experts rather than the parties. The parties are not responsible for the content of the joint expert reports. They must, however, responsibly consider the contents of those reports in determining their respective positions. [13] Secondly, appeals to this court are conducted by way of a hearing anew of the development application. The question is not whether the Council’s decision was correct, for the correct reasons, at the time it was made. Rather, it is for the court to make a decision on the evidence adduced before it at the hearing. It is not at all unusual for facts to change or for further, more detailed or different expert analysis and opinion in relation to an issue or issues (here noise impact) to emerge subsequently to the decision making stage. That is the nature of a hearing anew. [14] Moreover, the respondent refused the appellant’s development application on a number of grounds which included, but which was not limited to, potential adverse amenity impacts by reason of noise. Its decision, in that respect, was supported by expert advice at the time. In the course of the appeal, it maintained that the appellant’s proposal would have an unacceptable amenity impact at a number of locations. Whilst the range of locations upon which it relied changed in September 2016, that was done promptly in response to the acoustic experts jointly, through the joint meeting process, raising the potential relevance of that additional location for -- 8 of 14 -- 9 consideration by the parties and their subsequent analysis, in accordance with the joint direction of the parties, of the likely impact at that location. Whilst that may have made the task confronting the appellant more difficult, the respondent’s conduct was not, in my view, improper or unreasonable, nor does it otherwise justify an order for costs in favour of the unsuccessful appellant. [15] The respondent seeks its costs of responding to the appellant’s costs application. I accept that, for reasons discussed already, the application was at least in part based upon a false factual basis and, in any event, had no reasonable prospects of success. [16] On 24 January 2017 the Council’s solicitors wrote to the appellant, asserting that its application for costs was “completely without basis” and pointing out, amongst other things: (i) amenity impacts on nearby land had always been an issue in the appeal; (ii) the appellant had engaged a series of acoustic consultants over time; (iii) Lot 209 had first been raised not by the Council, but by the experts jointly through the joint meeting process; (iv) the expert’s primary duty is to the court rather than those engaging them and, in particular, the Council is not responsible for the outcome of joint expert meetings and reports. The appellant nevertheless persisted in its application. [17] In the circumstances it is appropriate to order the appellant to pay the respondent’s costs of responding to the appellant’s costs application. -- 9 of 14 -- 10 [18] The council and the represented co-respondents by election each seek costs against the appellant. Each has been the beneficiary of limited costs orders in the past when the earlier hearing had to be adjourned. The costs now sought to be recovered exclude the costs that are subject of those earlier orders. It is convenient to deal with the applications against the appellant by reference to particular periods of time. [19] The first period is that from the commencement of the litigation to 19 September 2016, being the date of the email from the respondent’s solicitors which took issue with the impact of the proposal on Lot 209, amongst others. Only the respondent seeks its costs of this period. Its counsel fairly acknowledged this is the most difficult part of its application. It was, nevertheless, submitted that the proceeding had not enjoyed “a particularly happy history” in terms of expedition during that period. There is some force in that submission. Further, the Notice of Appeal stated an intention to modify the proposal in certain ways to make it more acceptable. The appellant ultimately made a series of changes over time to improve its performance, particularly in relation to potential noise impacts. The appellant’s proposal was not finalised as expeditiously as it should have been. Ultimately, that had costs consequences for the appellant, when the hearing of the appeal had to be adjourned. [20] Whilst the prosecution of the appeal was not as expeditious as it could have or should have been, and whilst the appeal was ultimately abandoned, I am not persuaded to make an order for costs in respect of the period up to 19 September 2016. Leaving matters of expedition to one side, the appeal otherwise proceeded in a reasonably regular way. Issues were identified, relevant experts were engaged (including by the appellant), the expert meeting and report process progressed and the matter was otherwise prepared for trial. There is no suggestion that, subject to the appellant’s willingness to modify the proposal as necessary, the appeal was bereft of any real -- 10 of 14 -- 11 prospects. Insofar as the amenity issue is concerned in particular, it should be noted that at least by the time of the third joint expert report, the proposal was assessed as meeting the criteria that the appellant’s consultant contended for at all receptors other than for Lot 209, the potential relevance of which did not emerge until relatively late in the progress of the matter. The appellant’s conduct of the proceeding in this period was not, in my view, unreasonable to the point of tipping the balance in favour of making an order for costs. [21] The respondent’s application for costs for this period is dismissed. [22] The next relevant period is from 19 September through to early December. The respondent seeks its costs on the standard basis for this period. The basis for the application is that once it became clear that the Council would rely on the impact at Lot 209, the appellant ought to have reconsidered its position and resolved to abandon its appeal at that point. [23] Whilst the parties jointly asked the experts (in response to the 2 August 2016 conduct report), to consider Lot 209, there was no agreement, at that point, as to the relevance of the impact on that lot. I note that on 19 August 2016, Mr Steer emailed the appellant’s solicitor questioning how Lot 209 could be introduced so late in the process. His solicitor responded the same day stating “you will see that the parties have agreed that Lot 209 is not a sensitive receptor as there is no house on it”. That was, at best, an incomplete explanation of the joint instructions to the experts. It appears from the evidence of Mr Steer that he then took some comfort in the fact that the first joint report of the noise experts, dated 12 September 2016, showed Lot 209 as a monitoring location, rather than a sensitive receiver. At least by 19 September however, when the Council’s solicitor sent an email to invite the appellant to abandon its appeal at that stage, the appellant was on notice that the Council would be relying -- 11 of 14 -- 12 upon the impact on Lot 209. Thereafter, on 11 October 2016, the experts published their second joint report in which Lot 209 was assessed as a sensitive receptor, rather than just a monitoring location. The appellant was provided with the statement of the owner of Lot 209 shortly before the hearing. These things, it seems, agitated Mr Steer, but the appellant did not abandon the appeal at that point. [24] It is unnecessary for me, for present purposes, to reach a view as to whether Lot 209 would ultimately have been considered to be a noise sensitive receptor. Ultimately, the appellant abandoned its appeal rather than face the argument about Lot 209. If that was to be its attitude, it ought reasonably have taken that course more promptly upon receiving notice that the Council would be relying upon the impact on that lot. I appreciate that, in this period, the appellant was still in the process of amending its proposal to minimise noise impacts and it was not until 16 December that a third joint report of the noise experts was published which analysed the proposal in its final form, found the proposal’s impact at Lot 209 to still be beyond any applicable criteria and recorded Mr Walker’s view that there should be some requirement to reach a compensation agreement with the owner of Lot 209. As Mr Steer acknowledged in the course of oral argument however, the design improvements were not directed at achieving compliance at Lot 2092 and were only ever likely to potentially achieve compliance for other locations.3 [25] As Mr Steer acknowledged, the proximity of Lot 209 was such that the proposal could not comply. Accordingly, as he accepted, the appellant was, subject to legal argument about the relevance of Lot 209, “in strife” as soon as Lot 209 was relied upon as a noise sensitive receptor.4 That being the case, it was incumbent upon the appellant, 2 T3–14. 3 T3–15. 4 T3-15. -- 12 of 14 -- 13 acting reasonably, to promptly review and determine its position once it was put on notice that the potential impact on Lot 209 would be relied upon. Whilst Mr Steer appears to have become alarmed when the description of Lot 209 was changed in the second joint report of the noise engineers, dated 11 October 2016, the appellant had been put on notice since the email from the Council’s solicitor of 19 September. It should have resolved its position as to whether it would contest the relevance of Lot 209 and as to whether it would proceed, in the face of reliance on Lot 209, at that stage. Its failure to do so, in my view, tips the balance in favour of making an order for costs, although the order will be from a later date, to allow for a reasonable period, after the Council’s solicitor’s email of 19 September 2016 in which for the appellant to have considered and determined its position. I will allow a seven day period. [26] The final period is that from December 2016. The represented co-respondents by election seek their costs from 14 December 2016 on a standard basis, whilst the respondent seeks its costs from 7 December on an indemnity basis. [27] On 7 December 2016, it was determined that the then latest changes to the development were minor changes. Orders were made, amongst other things, that the appellant deliver the revised noise model and noise contour maps, and that the experts participate in a further expert meeting which ultimately produced the third joint report dated 16 December 2016. It was in this period that the appellant “fell out” with its solicitors. From 14 December 2016, the appellant’s solicitor was unable to make contact with Mr Steer. Ultimately, the appellant’s solicitor was given leave to withdraw as solicitors on the record, by order of the court on 19 January 2017. [28] Mr Steer’s evidence was to the effect that he was, in that period, considering all the information for himself. He ultimately made a decision in early January 2017 to abandon the appeal, but did not communicate that to the other parties notwithstanding -- 13 of 14 -- 14 that he knew that they would have been continuing to prepare for the resumed hearing. It seems that he had become somewhat overwhelmed. [29] The conduct of the appellant, through its director, in allowing the other parties to continue preparing for trial without informing them that he was, from at least 14 December 2016, in the course of reviewing the appellant’s position and thereafter failing to inform them, in early January 2017, that he had decided to abandon the appeal, warrants an adverse costs order, on an indemnity basis, for the whole of that period. [30] For the reasons given: (i) the appellant’s application for costs is dismissed; (ii) the appellant is to pay the respondent’s costs of the appellant’s costs application, assessed on a standard basis; (iii) the appellant is to pay the represented co-respondents by election’s costs of the proceeding from 14 December 2016, assessed on the standard basis; (iv) the appellant is to pay the respondent’s costs of the proceeding: A. from 26 September 2016 to 13 December 2016 on the standard basis; and B. from 14 December 2016 on an indemnity basis; and (v) the respondent’s application for costs is otherwise dismissed. The above costs exclude the costs the subject of existing costs orders. -- 14 of 14 --