Fanirata Pty Ltd v Logan City Council & Anor [2013] QPEC 55

1 [2013] QPEC 55 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 3940 of 2012 FANIRATA PROPRIETARY LIMITED Appellant and LOGAN CITY COUNCIL and ANOTHER Respondent BRISBANE 3.00 PM, THURSDAY, 15 AUGUST 2013 JUDGMENT CATCHWORDS Uniform Civil Procedure Rules r670, r671(h), r 672 Planning and Environment Court Rules 2011 r3(2) Sustainable Planning Act 2009 s457, 493(2), s495(1) Costs- Security for costs of adverse submitter appeal sought by Respondent Developer – appellant held not a “plaintiff” amenable to an order for security -- 1 of 13 -- __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: This is an application, for which no precedent could be found in this court or, I understand, its New South Wales equivalent, for an order for the payment of money into court by Mr Hogan as security for costs that he might be ordered to pay in the future. He has a five acre site where his house is, a house which he says the Council required him to construct elevated on stilts against flood 5 risk, which is next door to a developer‟s site of similar dimensions at Crestmead. The Council, by negotiated decision notice, approved Fanirata Pty Ltd‟s development application to the extent of 31 of 40 units in a proposed multi-unit development over the site at 247 to 263 Chambers Flat Road, Crestmead. 10 On the month of October 2012, Fanirata launched its appeal which would be described as a conditions appeal. Mr Hogan, apparently not apprised of the Council‟s final decision at the same early date as Fanirata heard about it, commenced his appeal on the 5th of November 2012. Could you tell me, Mr Morais, when the Council and Fanirata reached their agreement? 15 MR MORAIS: Unfortunately, your Honour, I don‟t know the precise date. I haven‟t brought my material along with me. HIS HONOUR: Do you know about when? 20 MR MORAIS: It would have been in July when they reached a - - - HIS HONOUR: July this year. Very recently. 25 MR MORAIS: Yes. When they reached an agreement on an amended proposal and conditions and plans were circulated. HIS HONOUR: Thank you. At the time of Mr Hogan‟s appeal, he was complaining of the approval of 31 units raising grounds - - - 30 . -- 2 of 13 -- __________________________________________________________________________________ 3 JUDGMENT MR MORAIS: I think that when Judge Rackemann gave his orders out, because that‟s when we hadn‟t had the mediation – it was just before then and that‟s when Logan City and Fanirata - - - HIS HONOUR: Thank you – raising grounds to do with filling of flood land 5 causing increased flood risk and danger to properties on the diminishing low-lying land still remaining in the area. He referred to a provision requiring a development to provide overflow paths not altering the characteristics of existing overland flows on other properties or creating an increasing flood damage to them and also concentration of stormwater which the developer proposed to discharge from a 10 “proposed bioretention/detension basin” which it was said would concentrate stormwater. There were other complaints about high density living, said not to be in line with the current design of surrounding houses, reduction in privacy and increased noise levels particularly during construction. 15 As the matter advanced in the court it was determined that Fanirata‟s appeal, 3940 of 2012, should be the carriage file in which all material should be filed, to be treated as evidence in it and also in Mr Hogan‟s appeal, 4339 of 2012. He was required to reformulate his objections which he did in a way that, to my mind, makes them all together rather less informative. Mr Hogan has been self-represented all along and 20 still is. His objections are now briefly formulated as: “That the proposed development (1) did not put the new design or layout to public objection; (2) putting more than one house on the non-urban land; (3) filling of flood land; (4) putting high density housing in a part of Crestmead that has none; (5) two-storey dwelling reducing the privacy of my neighbours and myself; (6) the creation of a public 25 walkway along the boundary fence between our properties; (7) putting money before the community.” Particulars of those brief grounds were supplied by email at the request of Mr Keliher, the legal representative of Fanirata, on the 7th of August this year. At a 30 mediation, the Council and Fanirata have come to terms. The Council now supports a development of 40 units and no differences remain between it and Fanirata. It is in those circumstances that Mr Keliher brings this application filed in 3940 of 2012 for -- 3 of 13 -- __________________________________________________________________________________ 4 JUDGMENT an order that “By 30 August 2013, the co-respondent by election (appellant in appeal number 4339 of 2012) pay the sum of $25,000 into court as security for costs of the appellant (the co-respondent in appeal 4339 of 2012) pursuant to rules 670 and 671(h) of the Uniform Civil Procedure Rules 1999.” 5 The ground relied upon, according to the application, is the raising by Mr Hogan in his appeal of issues requiring the appellant to engage expert witnesses in circumstances where the co-respondent by election “has no intention of engaging his own expert witnesses to support his issues.” The experts nominated are a hydrologist or flood expert, Mr Rogers, and a town planner, Mr Priddle. The developer‟s site, 10 according to the planning scheme map the court has been shown, shares with Mr Hogan‟s property a yellow colour designating a flood-prone area except for a crescent along the boundary remote from the boundary with Mr Hogan. The pink land in the crescent is urban and available for housing, the use that has come to realisation on the adjoining lands beyond what I call the crescent or pink segment. 15 Fanirata‟s case is that it‟s appropriate to reconform its land by cut and fill methods so as to enlarge the pink area. It‟s proposed to be enlarged in that way, that is, without importing fill, to increase the usable area from 34 per cent of the site to 68 per cent. The remaining 32 per cent, it seems, is to be dedicated to Council for park purposes. 20 The Council were not persuaded by the hydrological information provided with the development application and they‟ve made an information request for further information. A report from consulting engineers was obtained which appeared to give the Council the assurance that it was seeking in relation to matters which I shall describe loosely as “flood connected”. 25 Mr Hogan explains the line separating the yellow from pink as being the 1974 flood line and his property was inundated in the Australia day events in that year, but he may have been more fortunate since. The Council‟s approach to the development application was that it conflicted with the planning scheme, but that grounds existed 30 which justify approval in any event given that what was proposed was, a well designed development “that will combine medium residential development, open -- 4 of 13 -- __________________________________________________________________________________ 5 JUDGMENT space, and transport linkages to facilitate increased social interaction within the community,” having no concerning flooding issues. There is in the material, reference to water levels being elevated in consequence of the development but not to a concerning extent. I think I‟ve located what I had in 5 mind, which is the Council‟s commendably full advice to the lawyers who assisted Mr Hogan in lodging his submission, a letter of the 2nd of August 2012. The developer‟s approach is that Mr Hogan ought to be satisfied with the modelling done, as Council has been, and that if he wishes to continue to stand in the way of these appeals, culminating in a development approval which Fanirata may implement, that 10 ought to be on the basis that it‟s protected for its costs in having unnecessarily, it would say, engaged the experts mentioned. Mr Keliher‟s full, clear and helpful submissions, for which I am happy to pay tribute to him, establish that Mr Hogan may find himself ordered to pay costs if he is 15 unsuccessful, depending on the way in which the court exercises its discretion. It‟s not the current version of section 457 of the Sustainable Planning Act 2009 which governs costs, but the less threatening version from the point of view of submitter appellants which prevailed at the time the appeals were instituted. The cases Mr Keliher assembled were Collier v Brisbane City Council [2009] QPEC 40 in which 20 adverse submitters abandoned their own expert when he opined that a revised development proposal was a reasonable outcome. Judge Rackemann disapproved of the appellant‟s conduct in maintaining the grounds which the expert considered failed to carry much weight once the development 25 proposal changed. That‟s in the reasons at paragraphs 34, 41 and 42. Gold Cost City Council v Yeates [2007] QPEC page 7 involved a proceeding of a different kind. It was the council that sought to establish that there‟d been unlawful filling. The respondent‟s approach obliged the council to engage a surveyor to make good its assertions, Judge Wall thought frivolously or vexatiously: “the respondent, in 30 denying the matter ... acted quite unreasonably.” See at page 7 the reasons. His Honour ordered that the costs of obtaining evidence from a surveyor, those costs to be assessed on the standard basis if not agreed and to include the attendance of the -- 5 of 13 -- __________________________________________________________________________________ 6 JUDGMENT surveyor at court on the day, the proceeding having been compromised at the last moment, be paid by the respondent. In Krajniw v Brisbane City Council [2010] QPEC 128, an unusual order was made against Mr Krajniw requiring him to pay the council‟s costs of and incidental to the 5 proceeding up to and until the 8th of March 2010, together with its costs thereafter limited to the costs of a formal appearance to receive judgement and costs of this application for costs. See paragraph 26. Mr Krajniw had already suffered an order for costs “from the 24th of February 2010” with a qualification, as appears from paragraph 8. 10 Cooloola Ratepayers and Residents Association Incorporated v Cooloola Shire Council [2004] QPEC 018 resulted in the appellant association being ordered to pay the costs of the council and of the co-respondent developer from different dates in April 2004 “including the cost to bring experts to court during the hearing”. 15 Judge Robertson considered that Mr Lightfoot, who presented the Assocation‟s case, was engaging in some frolic of his own in opposing the developer‟s application for a furniture showroom in the housing zone, its business having outgrown the former premises. Apparently, it was difficult to identify any other suitable land that might 20 have been available. His Honour made some remarks about submitter appeals in paragraph 50 following his reasons that may have contributed to the changes recently made to section 457. He thought consideration ought to be given to some form of accreditation of submitter appellants to ensure that “if these appeals are prosecuted, they are done so on a professional and relevant basis”. 25 He sympathised with a developer “in an invidious position having to conduct expensive and time-consuming litigation in the face of what turned out to be practically no relevant opposition”. Mr Lightfoot was suspected of having committed perjury in relation to whether or not he‟d received information that, in the 30 court‟s view, ought to have dictated that he abandoned the appeal. As his Honour said, paragraph 57, “Before I heard his evidence, I was inclined to award costs on the -- 6 of 13 -- __________________________________________________________________________________ 7 JUDGMENT basis that the prosecution of the appeal, after delivery of the amended plan, was frivolous, but now I‟m satisfied that it was vexatious.” In AB & R Sultana Pty Ltd v Johnstone Shire Council [2004] QPELR 538, Judge White ordered a submitter appellant which was a commercial rival of the developer 5 of a shopping centre to pay costs of the developer and the council on the basis that they‟d been put to expense of taking part in the appeal for no legitimate reason. Judge White said in page 7 of his reasons: “The sole motive, in effect, was to attempt to create a commercial advantage to themselves which had nothing 10 whatsoever to do with any issue relevant in the town planning sense to the proposed development. I should add also that the attempt also involved avoiding the legitimate town planning processes required by law….the only inference to be drawn is that the appellants instituted the 15 appeal merely to delay or obstruct and also to vex the Co- Respondent and the Council. I am satisfied that the proceeding was instituted merely to delay or obstruct. I‟m satisfied that the proceeding was 20 vexatious. In my view, it was also frivolous. Mr Pope‟s suggestion that the Appellants were putting the Co- Respondent to proof only serves to reinforce my view. The Co-Respondent‟s application to Council raised no issue whatsoever between the co-respondent and the Appellants. 25 There is not the slightest suggestion that the Co- Respondent‟s proposal would have any adverse effect on any legitimate interest of the Appellants.” There‟s also Hall v Nanango Shire Council (No 2) [2005] QPEC 105 in which the 30 appellants were ordered to pay one half of the costs of the co-respondents, including expert witnesses in the appeal. As has happened in this case, the developer notified experts as required by the timetable direct by the court. The appellants did not nominate experts, indicating that they‟d be relying on “research of long time local knowledge of the appeal”. The developer foreshadowed that an application would be 35 made for costs under section 4.1.23 of the Integrated Planning Act 1997. The appellants indicated by affidavit of one of them that they “had not realised that the fact that the appeal proceeded as a „hearing anew‟ meant that our criticisms of council‟s assessment and approval of the co-respondents‟ application were largely -- 7 of 13 -- __________________________________________________________________________________ 8 JUDGMENT irrelevant in the context of the further reports and assessments that were before the court.” His Honour had some sympathy for that situation but considered that the effect of the costs provisions he had to consider was “to compensate an innocent party the costs 5 pointlessly incurred rather than mark the court‟s disapproval of the conduct of the proceeding by the other party.” His Honour noted the discretion that the court had in relation to costs was, but not prepared to characterise the appeal as lacking seriousness or sense “prior to the delivery to the appellants of the experts reports.” At that stage matters changed. His Honour thought late delivery of the reports by the 10 co-respondents or something weighing against them: had things been otherwise the appellants “may have proceeded in a more sensible fashion.” The costs order made was rather limited and explained as follows, see paragraph 10:“I am not prepared to order any costs with respect to obtaining and preparation of the reports. I will, however, order that the appellants pay one half of the costs incurred by the co- 15 respondents in calling the relevant expert witnesses to give evidence in the appeal.” Mr Hogan has heard enough here today to appreciate the risk that he faces and Mr Keliher has certainly placed him on notice. I am unlikely to be the Judge should either of the appeals proceed to a final hearing. I am not prepared to say that Mr 20 Hogan is proceeding inappropriately. He‟s the immediate neighbour of the site. I don‟t think it can be said that he ought to be satisfied by the provision of such “expert” information as may have been made available to him to date, that his fears, as a neighbour, that he may suffer if the advice is wrong, ought to be set aside. 25 Mr Keliher properly placed before the court relevant authorities, including authority that did not assist his case, one of them in particular to Fraser Island Defenders Organisation v Maryborough City Council [1987] QPLR 23. That was an application for security for costs against the appellant company made on the basis of section 533(1) of the Companies (QLD) Code. 30 Mr Keliher‟s application can‟t rely on any law about companies; it relies on the Uniform Civil Procedure Rules r 670 and r 671 of which only subparagraph (h) -- 8 of 13 -- __________________________________________________________________________________ 9 JUDGMENT might arguably apply. By it “the court may order the plaintiff to give security for costs only if the court is satisfied that the justice of the case requires the making of the order.” The UCPR are made available if needed to supplement, the rules of this court. See 5 the Planning and Environment Court Rules 2011 rule 3(2), being the current provision. In the FIDO appeal, Judge Row said this: “An appeal to the Local Government Court is not an appeal stricto sensu but is a rehearing and de novo of the original application. On the hearing of an appeal the court does not 10 determine whether the decision of the local authority is correct or not. The Court hears the application and may either approve, approve subject to reasonable and relevant conditions or refuse the application. The Court does not, in such circumstances, confirm, vary or over turn the decision 15 of the local authority. The Local Government Court decides the application for itself having regard to all relevant matters which the parties to the appeal have put before it. The jurisdiction of the Local Government Court is to be contrasted with the jurisdiction of other Courts or bodies 20 where a person institutes proceedings. On an objector appeal the objector carries the onus whereby he is required to establish that the application should be refused or his appeal upheld. On an applicant appeal the applicant carries the onus whereby he is required to establish that the application should 25 be approved or approved subject to reasonable and relevant conditions.” See pages 24 and 25. Being satisfied that the local government court was a court for the purposes of the Companies Code, his Honour on page 26 considered whether the 30 appellant was a plaintiff. He determined that it was not; rather it was an entity which; “has a statutory right to lodge an objection to the application and to have its objection considered by the Respondent. It has a statutory right to appeal to the Local Government Court 35 against the decision of the Respondent proposing to approve subject application. The Appellant in this appeal is exercising its statutory right consequent upon from the decision of the Respondent to have the application of the Respondent by Election and settlement once more or anew. 40 In such circumstances it cannot be said that it complains that is being deprived of some legal right which it is asked in judicial tribunal to enforce in its favour. What the Appellant is seeking to do is maintain its statutory right. In such -- 9 of 13 -- __________________________________________________________________________________ 10 JUDGMENT circumstances the Appellant, in my view, is not a Plaintiff in the meaning of section 533 of the Act.” The question today is whether Mr Hogan, as appellant in this court, is a plaintiff for the purposes of rule 671. In my view he cannot be so regarded. The arguments in 5 that regard are strengthened by reason of changes in the law that governs appeals such as the present whereby an objector or submitter no longer has the responsibility of proving his appeal should be allowed, rather the developer has the responsibility of proving that it should be dismissed: see section 493(2) of the Sustainable Planning Act 2009 under which matters are proceeding. The familiar provision that the appeal 10 is by way of hearing anew is now section 495(1). Mr Keliher also referred to Judge Row‟s decision in Walkden v Townsville City Council [1990] QPLR 70 where the court had jurisdiction to order security for costs of an appeal from the Local Government Court to the Full Court of the Supreme 15 Court. Bearing in mind the discretionary factors, his Honour refused that application which, I note, he also said he would have done if, contrary to his view, the appellant in the FIDO case had come within the word “plaintiff”. The other case referred to by Mr Keliher which supports him is the decision in this 20 court in Fitzgerald v Council of the City of Logan [1992] QPLR 198. There, her Honour reviewed authorities declaring herself at page 200 “satisfied that this court has inherent jurisdiction to order security for costs. This includes but is not limited to the power to prevent abuse of process or injustice.” 25 A discretion such as this is considered to be unfettered; a proposition which is clearly borne out by other authorities referred to by Mr Keliher such as Base 1 Projects v Islamic College of Brisbane Limited [2012] QCA 114, in particular at paragraph 18 where Margaret Wilson AJA with the other members of the Court of Appeal concurring said that the discretion was “unfettered and should be exercised having 30 regard to all of the circumstances of the particular case without any predisposition in favour of an award of security.” Rather boldly, Mr Keliher submitted that the passage should be taken to mean there ought not to be any predisposition against awarding security. That case is an indication that the traditional approach that security is not -- 10 of 13 -- __________________________________________________________________________________ 11 JUDGMENT ordinarily ordered against an individual, or against a company if an individual is prepared to undertake personal responsibility for costs it may be ordered but fail to pay is very much under review. However, it will be noted that in Valeba Pty Ltd v Mulpha Sanctuary Cove (Developments) Pty Ltd [2012] QSC 286 the directors “irrevocable guarantee” was accepted. 5 Mr Keliher also took me to In the Marriage of MA and RM Brown (1991) 15 Fam LR 69. It was said at page 5 that “costs security orders prevent abuse of court process by inter alia preventing impecunious persons from litigating without responsibility.” The Judge said “while there‟s a strong social trend that litigants short 10 of funds should have their day in court without suffering any disadvantage caused by lack of means, the fact that an appellant would be unable to pay the costs of the appeal, if the appeal fails, is a special circumstance where the appellant should provide security for costs – see Scerri v Northam Holdings [1967] VR 674. My feeling “should” might more appropriately read “may be ordered to”. 15 All this is really by the by, since there‟s nothing whatever to raise any concern that should Mr Hogan suffer an adverse costs order, he will be unable to satisfy it. Returning to Fitzgerald, in which the appellant was an undischarged bankrupt, her Honour – although holding, she had discretion to do it – did not order security for 20 costs. She thought it significant that it hadn‟t been alleged that he had no prospects on the appeal. She noted that, “The appellant is exercising his statutory right, consequent upon a decision of the respondent to have the application of the respondent, by election, examined once more or anew.” 25 Reference was made to the FIDO case at page 27 for the proposition that “the grant of an order for security for costs depends on the exercise of a discretion which is unfettered and in each case, should be considered on its own particular facts and circumstances.” It‟s intriguing that there is no acknowledgement of what Judge Row said regarding an appellants not being a “plaintiff,” although that appears to have 30 been recognised as a discretion factor counting against the ordering of security. I have misgivings, in a regime in which there are well-known provisions about companies and corresponding provisions applicable to individuals in rule 670 ff of -- 11 of 13 -- __________________________________________________________________________________ 12 JUDGMENT the UCPR, about adding to the court‟s jurisdiction, as part of the inherent one to control its process, an inherent jurisdiction to order security for costs. It‟s trite to observe that costs are entirely a creature of statute. It seems to me, with respect, that Fitzgerald is not a decision which I ought to apply. 5 A case that I ought to notice is Robson v Robson [2008] QCA 36, where there may have been a difference in approach between Keane JA, as he then was, in paragraph 19, and the other members of the court as to the effect of section 671(h). His Honour thought that paragraph (h) should be read with the preceding paragraphs, which in no 10 way assist Mr Keliher‟s application. His Honour thought rule 671 served a gatekeeper function in the sense that an applicant who couldn‟t satisfy it would gain no assistance from rule 672. It‟s in that respect that the other members of the court may have seen things differently. 15 What Mr Keliher pointed to, in rule 672 is subrule (b), relating to the prospects of success or merits of the proceeding. Although he pressed the case strongly that his client has expert reports favourable to its case and Mr Hogan doesn‟t have any in response, Mr Hogan‟s prospects look grim, it‟s not appropriate, in the circumstances, for me to proceed on that basis. The court need not accept the evidence of experts. I 20 think there is an issue as to whether the boundary between the pink area and the flood-prone area can be altered in the way that is proposed here. I‟m also not satisfied that it‟s necessary, although it‟s clearly open to the developer, for it to engage the experts whose contributions will presumably be helpful to its case. 25 There may well be reports prepared already by persons who could be subpoenaed inexpensively to confirm what they‟ve already produced. Mr Keliher says that‟s an unattractive way of proceeding, but it‟s inexpensive. What the court has to decide today is whether Mr Hogan ought to be required to find $25,000 to bring to court so that the developer has the comfort of knowing that, should it get a costs order in 30 respect of calling expert evidence of a high standard prepared solely for the purposes of the appeal, there won‟t be any worries about collecting the costs amounts. It‟s an -- 12 of 13 -- __________________________________________________________________________________ 13 JUDGMENT unattractive proposition to me. As I indicated before lunch, the application is refused. ---- 5 Instances of the UCPR being applied in this court (or sought; unsuccessfully, to be applied, in some cases) are proliferating and extend to ever more rules. Reference to the indices for legislation considered in the QPELR seems over recent years enables many decisions to be located readily. I am disappointed to discover that the index in the 2012 volume, which had a new publisher, omit this useful category of references, 10 and express a hope that the omission can be remedied in 2013. There are several decisions that would have listed under the UCPR beginning with MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPELR 63 and Theo v Logan City Council [2012] QPELR 78 and ending with Copley v Logan City Council [2012] QPELR 607; in between see pp 90, 216, 360, 365, 392, 410 and 607. 15 ______________________ -- 13 of 13 --