Cleveland Power Pty Ltd v Redlands City Council and Anor [2013] QPEC 17 (2013) QPELR 489

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cleveland Power Pty Ltd v Redlands City Council and Anor [2013] QPEC 17 PARTIES: CLEVELAND POWER PTY LTD (Applicant) and REDLAND CITY COUNCIL (Respondent) and THE CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION (Co respondent by election) FILE NO/S: 4856 / 2012 DIVISION: Planning and Environment Court PROCEEDING: Hearing of an application in respect of costs ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 3 June 2013 DELIVERED AT: Brisbane HEARING DATE: Application on the papers closing 23 April 2013 JUDGE: R S Jones DCJ ORDERS: 1. The Birkdale Progress Association Inc is to pay the costs incurred by Cleveland Power Pty Ltd in responding to the Associations application to be joined as a party; 2. Such costs are to be fixed in the sum of $2,000; 3. The Association has three months to pay the costs. CATCHWORDS: COSTS – where application brought to be joined as a party pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules 1999 – where application unsuccessful – where application misconceived – whether costs ought be awarded pursuant to s 457 of the Sustainable Planning Act 2009 – where recent amendment to Sustainable Planning Act 2009. -- 1 of 7 -- 2 Sustainable Planning Act 2009 Uniform Civil Procedure Rules 1999 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 COUNSEL: Mr M Williamson for the applicant SOLICITORS: Ms Jo-Anne Bragg, principal solicitor, Environmental Defenders Office (Qld) Inc for the Birkdale Progress Association. Connor O’Meara, solicitor for the applicant. [1] This decision is concerned with an application brought by Cleveland Power Pty Ltd (the applicant) for cost orders against the Birkdale Progress Association Inc (the Association). For the reasons set out below, the orders of the court are: 1. The Birkdale Progress Association Inc is to pay the costs incurred by Cleveland Power Pty Ltd in responding to the Associations application to be joined as a party; 2. Such costs are to be fixed in the sum of $2,000; 3. The Association has three months to pay the costs. Background [2] On 7 November 2007, following mediation and pursuant to an order of this court, the applicant was granted development approval authorising the making of a material change of use for a Bio-Mass Power Plant, to be located at Hillview Road, Mount Cotton. [3] The development was one that had attracted a significant degree of critical attention from the local community and the involvement of various institutions including the Chief Executive, Department of Environment and Heritage Protection, the Wildlife Preservation Society of Queensland and the subject Association. Of particular concern was the potential for material negative impacts on amenity, especially in respect of air quality, noise and visual amenity. [4] On 11 December 2012, the applicant commenced proceedings by way of an Originating Application seeking an order permitting a permissible change to an existing development approval pursuant to ss 367 and 375 of the Sustainable Planning Act 2009 (SPA). That application was not opposed by the relevant local authority, the Redland City Council, or by the Chief Executive, Department of Environment and Heritage Protection. The Wildlife Society was represented at the application. It was that societies initial intention to be joined as a party and to oppose the application but elected not to proceed when it recognised that a number of its concerns were addressed by the proposed changes to the development. -- 2 of 7 -- 3 [5] However, the Association maintained its opposition and on 21 December 2012, filed an Application in Pending Proceedings seeking an order pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules 1999 (UCPR) to be joined as a party to the permissible change application brought by the applicant. The grounds advanced in support of its application were essentially: (i) The Associations interests would be affected by any decision made in relation to the originating application; (ii) The Association would, if joined as a party, place evidence before the court relevant to the permissible change application; (iii) The applicant was put on notice of the Associations intention to be joined. [6] Rule 69(1)(b) of the UCPR relevantly provides: “The court may at any stage of a proceeding order that any of the following persons be included as a party: (1) A person who’s presence before the court is necessary to enable the court to adjudicate effectively and completely on all matters in dispute in the proceeding; (2) A person who’s presence before the court would be desirable just and convenient to enable the court to adjudicate effectively and completely on all matters in dispute connected with the proceeding.” (emphasis added) [7] The “proceeding” before the court on 28 February 2013, was an application brought by the applicant concerned with s 367 of the SPA. That section relevantly provides: “367 What is a permissible change for a development approval (1) A permissible change, for a development approval, is a change to the approval that would not - (a) result in a substantially different development; or (b) if the application for the approval were remade including the change – (i) require referral to additional concurrence agencies; or (ii) for an approval for assessable development that previously did not require impact assessment – require impact assessment; or (c) for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or (d) cause development to which the approval relates to include any prohibit development….” -- 3 of 7 -- 4 [8] The Association had not been a party in any previous proceedings concerning the proposed development and its application to be joined was opposed by the applicant and the council. [9] In support of its application to be joined, the Association filed a number of affidavits1 and was represented by a Mr Baxter. Mr Baxter was not a lawyer but a member and officer of the Association. On any fair reading of the material filed on behalf of the Association it was clear that it was not so much concerned with the current application before the court concerning permissible changes, but with the substantive development approval granted in 2007. As I observed in my reasons for dismissing the joinder application2, it was to Mr Baxter’s credit that he did not shy away form the fact that the Association’s fundamental position was that the development should never have been approved in the first place and that the Association’s primary aim was to become involved to prevent it going ahead. Costs [10] Section 457 of the SPA has been recently amended in a significant way. The discretion of this court to make cost orders is no longer limited to those circumstances where, broadly speaking, a proceeding could be described as being frivolous or vexatious. Section 457 now grants this court a much wider discretion and relevantly provides: “(1) Cost of a proceeding or part of a proceeding, including an application, in a proceeding, are in the discretion of the court. (2) In making an order for costs, the court may have regard to any of the following matters: (a) The relative success of the parties in the proceedings; (b) The commercial interest of the parties in the proceeding; (c) Whether a party commenced or participated in the proceeding for an improper purpose; (d) Whether a party commenced or participated in the proceeding without reasonable prospects of success; … (g) Whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party in a proceeding; … .” [11] It is significant in my view that notwithstanding the material widening of the discretion of this court to award costs, the general rule embodied pursuant to r 681 of the UCPR that costs ordinarily follow the event, has not been adopted. It is also significant that the legislature acknowledged that where a proceeding involved 1 Two affidavits by Mr Baxter, and affidavit by Mr Wrigley and an affidavit by a Mr Knudson. 2 T 1-3: L 20-30. -- 4 of 7 -- 5 matters of public interest, that was a matter that the court could take into account in determining any question as to costs. [12] It is also important to bear in mind that, generally speaking, the purpose of costs orders are not to punish but to compensate. In Oshlack v Richmond River Council3 McHugh J relevantly said: “… costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs it indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, Venus dictates, that the unsuccessful party typically bears the liability for the cost of the unsuccessful litigation.” The merits [13] On behalf of the applicant, particular reliance is placed on s 4572(a) and (d) of the SPA. In essence, it contended that it was entitled to a cost order in its favour because: 1. It was successful in opposing the Associations application to be joined; 2. It was clear from the Association’s affidavit material that not only did the application have no reasonable prospects of success it was, in fact, doomed to fail; 3. The Association was not able to identify a single issue of concern associated with the proposed changes to the development of approval (as opposed to the substantive approval of the development); and 4. The applicant had incurred legal costs preparing for and opposing the application, including perusal of affidavit material, preparing an outline of argument and attendance at court. [14] Clearly in recognition of the fact that a court appearance was required to deal with its permissible charge application, the applicant sought its costs associated with the joinder application to be fixed at $2,000. [15] In paragraph 1 of the Association’s written outline of argument, it is said: “1. The Birkdale Progress Association Inc. (BPA) opposes the applicants oral application for costs under s 457 of the Sustainable Planning Act 2009… because: (a) BPA had no commercial interest in the proceeding, nor did it make the application for an improper purpose, but rather, it was concerned about potential impact on community health and the environment, matters of public interest; (b) the lack of success of BPA in the application is only one factor to be taken into account; 3 [1998] HCA 11; 193 CLR 72 at para (67). -- 5 of 7 -- 6 (c) the application to join may, in hindsight and with the benefit of legal advice, have had low prospects of success, but BPA did put forward some relevant material and the application was not doomed to fail and was certainly not frivolous or vexatious. A cost order in the particular circumstances of this matter would be contrary to advancing the purpose of SPA and, in particular, providing opportunities for community involvement in decision making; and (e) BPA complied with all directions and orders of the court.” (emphasis added) [16] It was submitted on behalf of the Association that each party should be required to bear its own costs. [17] The Association also pointed to a matter raised by me during oral argument namely that the applicant had not warned the association in writing that if it persisted with its application an adverse cost order would be sought. While the existence of such letter might have re-enforced the applicant’s position as to costs, the absence of such letter is not fatal. The distinct impression that I had from the proceedings on 28 February 2013, was that the Association was very likely to have proceeded with its application regardless of any warning about costs. The Association presented as being very determined to be joined in the proceeding. [18] I am readily able to accept that the Association was acting in the best interests of its members and, probably also, in the best interests of some of the disaffected members of the Birkdale community. I also accept that the Association is a not–for- profit organisation and had no commercial interest in the proceedings. However, again while those matters may militate against the making of an adverse cost order, they are not of their own or together determinative of the issue. [19] The applicant was successful in defending the application to be joined. Also, I consider the Association’s assessment of its chances of success as being “low” is not an entirely accurate description. In circumstances where it was clearly not the permissible change application that the Association was really concerned about, the real motive behind its application was to have the project derailed entirely, leads me to conclude that it would be reasonable to describe the Association’s application was one commenced and prosecuted with no reasonable prospects of success. [20] I also find it difficult to accept that the Association was not seeking to be joined for an improper purpose. As I have already said, I do not doubt that the Association was acting in the best interest of its members and no doubt believed that it was acting out of genuine public concern. However, that does not mean that the Association was acting for a proper purpose in the context of the application being dealt with on 28 February 2013. The relevant changes to the development were -- 6 of 7 -- 7 dealt with in my ex tempore reasons4 and it can be seen that they would result in a more desirable environmental outcome overall. By that I mean the changes proposed were designed to reduce the impacts on the environment and the amenity of those residents who might be affected by the power plant. In this context it should be noted that the proposed changes largely came about as a result of meetings between various experts concerned with matters such as noise, air quality and the broader question of amenity, which was dealt with by town planners. Ordinarily one might expect an organisation such as the Association to be supportive of changes leading to a more desirable environmental outcome. However, the Association pressed its application to be joined for the ulterior motive that I have already identified. In that context, notwithstanding the best intentions of the Association, having regard to the nature of the proceedings that were before the court at the relevant time, its underlying purpose for being joined could, in my respectful view, be described as being an improper one. [21] For the above reasons, I have reached the conclusion that not only was the applicant successful in resisting the Association’s application but, also, in the circumstances of the subject proceeding, the joinder application was commenced and proceeded with for an improper purpose and had no reasonable prospects of success. Accordingly, I consider the applicant is entitled to the costs orders it seeks. [22] Accordingly, the orders of the court are: 1. The Birkdale Progress Association Inc is to pay the costs incurred by Cleveland Power Pty Ltd in responding to the Associations application to be joined as a party; 2. Such costs are to be fixed in the sum of $2,000; 3. The Association has three months to pay the costs. 4 At p 1 6-1-11. -- 7 of 7 --