Fanirata Pty Ltd (as trustee) v Logan City Council & Hogan; Hogan v Logan City Council & Fanirata Pty Ltd [2014] QPEC 25 (2014) QPELR 539

- 1 - [2014] QPEC 25 PLANNING AND ENVIRONMENT COURT JUDGE R S JONES P & E No. 3940 of 2012 FANIRATA PROPRIETARY LIMITED (AS TRUSTEE) Appellant and LOGAN CITY COUNCIL and GLENN HOGAN Respondents P & E No. 4339 of 2012 GLENN HOGAN Appellant and LOGAN CITY COUNCIL and FANIRATA PROPRIETARY LIMITED Respondents BRISBANE 12 MAY 2014 EX TEMPORE JUDGMENT -- 1 of 10 -- __________________________________________________________________________________ - 2 - HIS HONOUR: These proceedings are in part concerned with an application on the part of the applicant for the following relief: (1) Condition 12.17 of the conditions package produced by the respondent on 22 April 2014 accords with paragraph (g) of the 5 mediation agreement dated 25 March 2014. (2) Appeals number 3940 of 2012 and number 4339 of 2012 be resolved on the basis that the development application the subject of those appeals be approved on conditions contained in the aforementioned 10 conditions package. (3) The co-respondent by election (in appeal number 3940 of 202) and appellant in appeal number 4339 of 2012), Mr Hogan, pay Fanirata, Pty Ltd’s costs of and incidental to this application and of the mention 15 on 23 April 2014 on an indemnity basis. In particular these proceedings are brought pursuant to section 491 of the Sustainable Planning Act 2009 which provides: 20 The Civil Proceedings Act 2011 Part 6 (the ADR provisions) applies to proceedings started under this part And section 51 of the Civil Proceedings Act 2011 that relevantly provides: 25 A party may apply to the Court for an order giving effect to an agreement reached at or after mediation. The background to the application is a rather unfortunate one. On 10 September 2012 the respondent, the Logan City Council, issued a negotiated decision notice 30 approving with conditions the appellant’s development application for a material change of use which was essentially for the development of multi unit residential units of 40 in number. On 9 October 2012 the appellant lodged an appeal, number 3940 of 2012, against some of the conditions in that approval and in particular, as far as I understand it, the reduction in the number of units from 40 to 32. On 5 35 November 2012 the co-respondent by election, Mr Hogan, lodged his appeal number 4339 of 2012 against the respondent’s approval of the application. The parties attended mediation on 17 December 2012 and again on 1 February 2013 but were unable to resolve their differences. Subsequently however, all issues as 40 between the appellant and the respondent Council were resolved leaving only the co- respondent by elections, that is Mr Hogan’s appeal, still on foot. Notwithstanding the essential settlement of the appeal between the appellant and the respondent, both appeals had been set down for hearing over three days commencing 17 February 2014. On 13 February 2014 Mr Hogan notified the parties that he agreed to resolve 45 the appeals on the basis of certain amendments to the plans of development that had been offered by the appellant. These are set out in pages 1 and 2 of the exhibit attached to the affidavit of Mr Keliher. Mr Keliher is the solicitor who appeared on behalf of the appellant. 50 -- 2 of 10 -- __________________________________________________________________________________ - 3 - On 12 February 2014 Mr Hogan sent the following email: Thank you for arranging this morning’s meeting to discuss the proposed development at 257-263 Chambers Flat Road, Crestmead, Queensland 4032. Thank you for forwarding the latest plan of development to me. I write to 5 confirm my offer to attempt to resolve the appeal. I propose:  All the dwellings to be built along the southern boundary are to be limited in height to one (1) storey. To avoid any doubt these dwellings are currently shown as five (5) buildings offering ten (10) two storey units 10 numbered 9, 10, 13, 14, 17, 18, 21, 22, 25 and 26 on Plan DA103W. The expectation is that in common with dwellings on the northern boundary that were similarly modified the number of units will be reduced from 10 two storey to 10 single storey on the southern boundary. 15  The extension of Norah Street providing through access to the northern property boundary of Lot 2 on RP126042 be removed from any plans depicting the proposed development. This offer is made on the understanding that once accepted this will be an end 20 of the matter and that neither Logan City Council nor Fanirata Proprietary Limited will pursue the matter further nor attempt to retrieve any costs incurred by my objection. On the same day Mr Keliher responded to Mr Hogan’s offer in the following terms: 25 Dear all Without prejudice 30 My client rejects this offer of settlement. My client is however prepared to drop units 22 and 26 to single storey and delete the road extension as requested. These are the only two units that afford any possibility of overlooking Mr Hogan’s residence so by dropping each of them to a single storey should eliminate any of Mr Hogan’s concerns with respect to privacy and amenity. If 35 this offer is rejected by Mr Hogan my client is poised ready for the trial commencing next Monday and we have already put Mr Hogan on notice that we will be seeking our costs for this matter should it proceed. However, our offer of settlement – however, should our offer of settlement be accepted my client is prepared to settle this matter without further pursuing Mr Hogan for 40 costs. On 13 February 2014 Mr Hogan responded in the following terms: I would like to accept your offer of settlement. Thank you for your time and 45 help in this matter. Following that, the appellant produced further plans in the expectation that all disputes between it and Mr Hogan had been resolved and as a consequence of that the respondent Council prepared and produced an amended list of conditions which 50 -- 3 of 10 -- __________________________________________________________________________________ - 4 - incorporated the recent terms which had been agreed. It was proposed on that basis that on 6 March 2014 the parties would attend Court and consent orders would be sought and given based on the agreement reached. However, on 5 March 2014 solicitors for the respondent advised Mr Keliher that Mr Hogan would refuse to consent to the condition packages because new matters concerned him. If not new 5 matters, then further matters. These were set out in exhibit 1 at page 22 where, in respect of condition 12.17, the following queries were raised: Does 12.15 mean that when you’re standing on the development you will be able to see my property to the south through the fence? 10 Does 12.17 mean there will be a new boundary fence on the southern boundary between my property and the new park and walkway as the passers-by can see over it and climb over it so this is not suitable? 15 I should note here that condition 12.17 dealing with fencing between the boundary between the appellant’s land and the land owned by Mr Hogan was the only remaining issue in dispute. As a consequence of these matters, when the matter came before the Court on 6 March 2014 his Honour Judge Searles made orders which included, (1) That Mr Hogan: 20 … list each condition he takes issue with of the draft conditions package provided by the respondent by – by 27 February 2014 and state precisely how he says that condition should read. 25 Also on 6 March 2014, following those orders made by his Honour Judge Searles, Mr Hogan emailed to the parties his list of proposed amendments. They are set out in exhibit 1 at page 27 and relevant to condition 12.17 it provided for the changing of the existing condition 12.17 to read as follows: 30 Fencing located on the boundary between the proposed parkland dedication and 265-271 Chambers Flat Road is to be replaced with a 1.8 metre high fence using a combination of timber and wire. Following that, on 25 March 2014, the parties attended a third mediation. At the 35 conclusion of that mediation all of the parties, including Mr Hogan, signed off on a purported agreement. The totality of that agreement is set out in exhibit 1 at page 28 but relevantly here it provided as follows: It is hereby agreed that the parties are to resolve appeal numbers 3940 and 40 4339 of 2012 based on the draft revised Conditions Package circulated to the parties on 27 February 2014, subject to the following changes: (g) draft condition 12.17 be amended to provide a 1.8 metre timber fence and wire fencing along the boundary of 265-271 Chambers Flat Road 45 and the land, the subject of these appeals, provided there be no adverse impact on flooding. -- 4 of 10 -- __________________________________________________________________________________ - 5 - As a consequence of that agreement, which I have said, was signed by all of the parties including Mr Hogan, a further condition package was prepared. Relevantly, that Condition Package in respect of condition 12.17 provided as follows: …remove the existing fence along the boundary of the development site and the 5 property at 265-271 Chambers Flat Road and replace it with a 1.8 metre high: 12.17.1 timber fence along the boundary adjacent to the house and shed on the property with a minimum 100 millimetre gap at the base of the fence to ensure that there are not adverse impacts in the event of 10 flooding, and 12.17.2 wire fence along the balance of the boundary which is not adjacent to the house or the shed. 15 It should be noted that consistent with the mediation agreement, to which I have already referred, the substantive material making up the fence was to be timber and wire. The reference to it being timber adjacent to the shed and house was, no doubt, to address the privacy issues raised by Mr Hogan. It should be noted that at the time Mr Hogan agreed to the terms of the proposed condition 12.17, that I have just set 20 out. On 9 April 2014, or soon thereafter, Mr Hogan approached Mr Keliher requesting some further, albeit slight, amendments to clause 12.17. That request was agreed to and the proposed new condition was advised to the respondent, and, as a 25 consequence, a new clause 12.17 was produced, which, relevantly, provided: Prior to the commencement of operational works or building works on site, remove the existing fence along the boundary of the development site and the property at 265-271 Chambers Flat Road and replace it with a 1.8 metre high: 30 12.17.1 timber fence along the boundary for a distance of 150 metres, commencing 70 metres from the property as it fronts Chambers Flat Road, with a minimum of 100 millimetre gap at the base of the fence to ensure that there no adverse impacts in the event of flooding; and 35 12.17.2 wire fence along the balance of the boundary. As I have said, the differences between its predecessor and 12.17, as finally prepared, are subtle. But it would appear that they have been more specific in the sense of the 40 location of that part of the timber fencing to specify where it commences and where it ends. Again, no doubt, as a result of representations made by Mr Hogan concerning privacy. Mr Hogan does not dispute that condition 12.17 in that form incorporated his request and was, in effect, what he had asked for. 45 One might have thought that that was the end of the matter, however, when it was indicated that this matter was, again, to come before the Court, Mr Hogan indicated that he was still not satisfied and on 22 April 2014, sent an email to the other parties which, relevantly, said: 50 -- 5 of 10 -- __________________________________________________________________________________ - 6 - Thank you for your email. I believe this to be fair. 12.17 Prior to the commencement of operational works or building works on site, remove the existing fence along the boundary of the development site and the property at 265-271 Chambers Flat Road 5 and replace it with a 1.8 metre high: 12.17.1 hardwood post rails and pine-butted timber palings along the boundary for a distance of 150 metres commencing 70 metres from the front of the property with a minimum 100 millimetre gap at the 10 base of the fence to ensure that there are no adverse impacts in the event of flooding 12.17.2 galvanised chain wire fence with 60 millimetre metal posts along the balance of the boundary, the first 70 metres and the last 65 metres of 15 the boundary 12.17.3 all posts to have concrete as a footings (sic). It can be seen that there are substantial similarities between the new proposed 12.17 20 and that that had been previously agreed. However, the main differences are that a specific form or type of construction is required by Mr Hogan. As a consequence of that latest correspondence on the part of Mr Hogan, the applicant filed its application and supporting material on the 24th of April 2014. 25 Mr Hogan’s primary concern with the fencing is not flooding, as I first suspected, but was concerned with matters of privacy, and, in particular, as I understand it, that that associated with the proposed bike way within the development. At the time of the third mediation, privacy was a major concern of Mr Hogan and the bike way was common knowledge as were the matters address in exhibit 2, which was tendered by 30 Mr Hogan during the course of these proceedings. It is true that the agreement produced at the end of the mediation was not in entirely precise terms. It stipulates that the fence is 1.8 metres high, is to be of timber and wire construction, and is to have no impacts on flooding. It does not, however, state 35 in clear terms the exact method, type or style of construction. The subsequent wordings of the conditions, to which I have already referred, make it tolerably clear that the introduction of more details concerning the location of where the fence was to be timber and where it was to be of wire construction, was introduced in an attempt to accommodate Mr Hogan’s continuing concerns about privacy. 40 Whilst I have said the clause dealing with condition 12.17 in the agreement produced following the mediation is not in entirely precise terms, it is, nonetheless in my view, enforceable as an agreement reached at or after mediation. That the exact details of construction of the fence were not identified is not surprising at this stage, where the 45 appellant is not yet at the design and construct stage of development. Further, Mr Hogan candidly and readily agreed that not only did he agree to the terms of the mediation agreement, but also that the various amendments to clause 12.17 were not only as a consequence of his request, but were also agreed to by him 50 -- 6 of 10 -- __________________________________________________________________________________ - 7 - during the negotiation process following the mediation. But at no stage does it appear to me that either the appellant or the respondent had resiled, in any way, from the agreement. I was referred to a case of Pittorino and Meynert (as executrix) and others (2002) 5 WASC 76 where it was relevantly said, in paragraph 111: Counsel referred to the matter of W J Green & Co (1984) ... unreported library number 970186, 24 April 1997 which concerned an offer of settlement said to have been made at a mediation conference but where acceptance was not 10 concluded at that conference. That is, of course, a different factual situation to the one under consideration here where it is said that an agreement was reached at mediation, reduced to writing, signed by each of the parties concerned and concluded at the end of the mediation hearing. 15 With that distinction in mind, however, in Green’s case Parker J said at 16: “The issue of whether the offer to settle was sufficiently certain such that its acceptance could constitute a binding agreement is raised for determination. A concise statement of the relevant law to be applied in order to determine this 20 issue can be found in Thorby v Goldberg (where Menzies J) said: “I would say that I do not think the law to be applied is in any doubt and I agree with and will apply the following statement of that law from the dissenting judgment of Sugerman J. He said: 25 “It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential or critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future 30 agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the Court is unable to attribute to the parties any particular contractual intention.””” 35 Here, in my view, when construed objectively the agreement produced at the end of the mediation was one where the parties intentions were able to be clearly identified and attributed. In my view, the essential and critical terms of the agreement concerning fencing existed – first, that it was to be 100 millimetres clear of the ground and to have no adverse impacts on flooding, second, it was to be of timber 40 and wire construction, and, third, it was to be of timber construction 70 metres from Chambers Flat Road for 150 metres and thereafter of wire construction. That some more of the details were added after the mediation does not affect its enforceability, in my view. 45 Mr Hogan, as I said, did not hesitate from acknowledging that he had agreed to the previous versions of condition 12.17 identified above, but said in defence of this application that he was not very good in dealing with these types of pressure situations, that he had some real trust issues in regards to what the appellant and the respondent might or might not do, and that it was his family that would be left 50 -- 7 of 10 -- __________________________________________________________________________________ - 8 - residing on the property long after the appellant and respondent lost interest in what was occurring in the location. The respondent’s primary position was that it supported the application, but said that it would not oppose orders incorporating Mr Hogan’s details, were I satisfied that that was an appropriate course of conduct. 5 The appellant opposed any further changes to condition 12.17 on the basis that not only does it go beyond what had been agreed, but, also, it would be premature to lock the appellant into a specific form of design and construct at this stage of the development. On balance, I am inclined to agree with that submission. It follows, in my view, for the reasons given, that the applicant should be granted the relief sought 10 subject to the resolution of some minor changes issues which will be dealt with this afternoon. ... The applicant seeks its cost of the application of this matter on an indemnity basis. For reasons acknowledged by Mr Keliher, it is acknowledged that it would not be 15 appropriate to pursue costs in respect of the mention date on 23 April 2014. The council’s position is that it makes no application as to costs. Mr Hogan opposes any cost orders being made. While agreeing with the chronology of events outlined by Mr Keliher, nonetheless, he says that no cost order should be made, because he conducted himself in the only way he believed that he could to get what he “needed” 20 and to get the best result from a bad situation which, in his view, would only get worse. Mr Hogan did not expand on that during his argument, but I took it to mean that, as a self-represented litigant, he had not acted unreasonably to protect his family’s interests in respect of a project that was going to have negative impacts on amenity, and, in particular, privacy. 25 During argument, Mr Keliher inadvertently – and, I must say, with no realisation or recognition on my part – relied on section 457 of the Sustainable Planning Act as it presently exists. At the relevant time, however, section 457 was in a significantly different form. In particular, section 457(1) provides that: 30 Each party to a proceeding in the Court must bear the party’s own costs for the proceeding. Subsection (2), however, recognised that the Court may make cost orders it 35 considered appropriate in particular circumstances. Mr Keliher, in particular, relied on subsection (d), which provided: A party that has incurred costs because the party is required to apply for an adjournment because of the conduct of another party. 40 In my view, this particular subsection does not apply, because here there is no application for an adjournment. Mr Keliher then relies on subsection (e), which provided: 45 Without limiting paragraph (d), a party has incurred costs because another party has introduced or sought to introduce new material. At face value, it appears to me that it might be arguable that subsection (e) is also not applicable, as this is not a case where Mr Hogan has sought to introduce material 50 -- 8 of 10 -- __________________________________________________________________________________ - 9 - which would cause this matter to be adjourned. Indeed, it was the material that was produced which caused this matter to come on. However, that said, I think it can be fairly stated that, in this particular case, this proceeding, and, therefore, the costs incurred by the appellant, arose because Mr Hogan sought to, yet again, introduce yet another version of condition 12.17. Mr Keliher also relied on subsection (f). On 5 balance, I do not consider that subsection (f) applies. Technically speaking, this proceeding is not concerned with a default in the Court’s procedural requirements. Subsection 457, as it then existed, clearly contemplated that ther starting point was that each party should bear its own costs. However, it seems clear to me that in 10 particular circumstances the Court is, nonetheless, empowered to make appropriate cost orders. On balance, it seems tolerably clear to me that the applicant was left with little, if any, other options other than to bring these proceedings. It has been successful in the proceedings, and, Mr Hogan had little prospects of successfully defending the application. 15 On balance, I consider that this is a case where some form of cost orders ought to be made. In this context, it needs to be recognised that cost orders are not made to punish the unsuccessful party, but to indemnify the successful party in respect of its costs or, at least, part of those costs in either having to successfully prosecute a 20 matter or successfully defend itself against prosecution. I think, quite fairly, Mr Keliher did not contend that Mr Hogan has acted in a frivolous or vexatious manner. Misguided as some of Mr Hogan’s behaviour might have been, I have no doubt that he has always attempted to act in the best interests of his family and not as a consequence of any attempt of commercial benefit or malicious conduct. It seemed 25 that after each agreement was reached about the fencing Mr Hogan, on further contemplation thought of a solution more favourable to him. Having regard to the provisions of section 457 as it then existed and having regard to the fact that it could not be reasonably said, as I have indicated has effectively been 30 conceded, Mr Hogan has not acted in a frivolous or vexatious way, I do not consider it appropriate to order costs on an indemnity basis. On balance, I consider that Mr Hogan ought to be required to pay the appellant’s cost of this application, but that those costs be limited solely to the application concerning condition 12.17, as the minor change application is one that would have had to have been brought, in any 35 event. ... 40 HIS HONOUR: In respect of the application, it strikes me that the orders I should make are: (1) Condition 12.17 of the condition package produced by the respondent on 22 April 2014 accord with paragraph (g) of the mediation agreement dated 25 45 March 2014. (2) Appeals number 3940 of 2012 and 4339 of 2012 be resolved on the basis that the development application the subject of those appeals be approved on conditions contained in the aforementioned conditions package. 50 -- 9 of 10 -- __________________________________________________________________________________ - 10 - (3) The co-respondent, by election, in appeal number 3940 of 2012 and appellant in appeal number 4339 of 2012 pay the applicant’s costs of its application, such costs to be limited to only those concerned with dealing with condition 12.17 of the respondent Council’s conditions package. 5 (4) I will hear further from the parties as to the orders concerning costs if required. 10 ______________________ -- 10 of 10 --