Bell & Ors v Brisbane City Council & Ors [2004] QPEC 46 [2005] QPELR 117

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bell & Ors v Brisbane City Council & Ors [2004] QPEC 046 PARTIES: ANDREW BELL, BEULAH ANDERSON CARMEL MACARTHUR, DAPHNE DANEN GEORGE DANEN, IAN DRIVER, LINDSAY EADON, LUCY BELL, PAUL WALKER, PETER BROWN REG O’BRIEN, ROBERT ANDERSON, SALLY WALKER, SHARON DRIVER, SHIRLEY O’BRIEN, AND STEPHANIE TOMSON Appellants v BRISBANE CITY COUNCIL Respondent And NEIL GARDINER AND LESLEY GARDINER Co-Respondents FILE NO/S: BD2636/04 DIVISION: Planning & Environment Court PROCEEDING: Application for costs ORIGINATING COURT: Brisbane DELIVERED ON: 17 September 2004 DELIVERED AT: Brisbane HEARING DATE: 20 August 2004; (written submissions from appellants and co-respondents received 26 August, 1 September and 3 September 2004) JUDGE: Alan Wilson SC DCJ ORDER: Co-respondents application for costs refused CATCHWORDS: PLANNING LAW – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – discretion of Court – whether proceedings frivolous or vexatious - relevant considerations Integrated Planning Act 1997, s 4.1.23 Cases considered: Attorney-General v Wentworth (1988) 14 NSWLR 481 Fox v Brisbane City Council (2003) 127 LGERA 390 Fox v Brisbane City Council [2002] QPEC 049 Mudie v Gain River Pty Ltd (No 2) (2003) 2 Qd R 271 at 204 -- 1 of 6 -- 2 Oakden Investments Pty Ltd v Pine River Shire Council [2003] QPELR 333 Oceanic Sunline Special Shipping Company Inc v Fray (1988) 165 CLR 197 Walton v Gardiner (1993) 177 CLR 378 Wilson v Laidley Shire Council (1994) QPELR 65 COUNSEL: Mr S Keliher for appellants/applicants Mr Chadwick, Solicitor, for respondent Mr G R Allan for the co-respondents (applicants for costs) SOLICITORS: Appellants/applicants self-represented Brisbane City Legal Practice for respondent John K Harris for co-respondents [1] The co-respondents seek an order that the appellants pay their costs of and incidental to a hearing in this matter on 20 August 2004. The application is brought under s 4.1.23(2)(b) of the Integrated Planning Act 1997 (IPA) which, relevantly, reads: Costs 4.1.23 (1) Each party to a proceeding in the court must bear the party’s own costs for the proceeding. (2) However, the court may order costs for the proceeding (including allowances to witnesses attending or giving evidence at the proceeding) as it considers appropriate in the following circumstances – … (b) the court considers that the proceeding (or part of the proceeding) to have been frivolous or vexatious; [2] The hearing on 20 August was the fourth time the matter came before the court within a week, and some of its history is relevant. One of the appellants, Ms Lucy Bell, filed a lengthy Notice of Appeal on 26 July 2004 showing herself and the other applicants as appellants and seeking orders that two dwelling houses on a property at 46-48 Wambool Street, Bulimba not be demolished. When the matter came before me on 12 August 2004 one of the houses had been removed and, it appeared, demolition or removal of the other was imminent. The matter was adjourned to the following morning when Counsel appeared for the applicants and an order was made, subject to the usual undertakings, directing that demolition of the house at 46 Wambool Street be restrained until 10.00 am on Thursday 19 August, with the further hearing of the matter adjourned to 9.00 am on that day. [3] At the hearing on 19 August I was persuaded there were no grounds for continuing the injunction, and it was lifted. Counsel for the co-respondents subsequently contacted my Associate expressing a concern that he may have misled the Court at the hearing, and he asked that the matter be re-listed on 20 August. Having considered the request, I arranged for my Associate to contact him in the morning of 20 August and advise him that a further appearance was not necessary. Nevertheless, all parties were represented at Court that morning when Mr Keliher, Counsel for the appellants, sought leave to bring a further application in the appeal for a declaration that: -- 2 of 6 -- 3 The demolition of the house at No. 46 Wambool Street, Bulimba is incidental to and necessarily associated with the co-respondents’ application to build multiple dwellings on the site. [4] I gave the appellants leave to bring that application instanter but, after full argument, dismissed it. Counsel for the co-respondents indicated his clients might wish to seek costs and I reserved that right to the respondent, too, and invited written submissions. The respondent has not sought costs. [5] The co-respondents contend the appellants’ application on 20 August was, in essence, unarguable and doomed to fail and, therefore, “frivolous or vexatious” within the meaning of those words as they are used in s 4.1.23(2)(b). The argument makes it necessary to look into the circumstances in which the application was brought, and the grounds upon which it relied. [6] So far as it appeared from the sparse material filed (and what I was told during oral submissions on various occasions) the co-respondents had, earlier this year, sought and obtained permission from a private certifier to demolish the two existing houses and, separately, permission from the respondent Council to erect multiple unit dwellings in their stead. The appellants’ submissions on 20 August rested on the proposition that the demolition work was so integrally connected with the subsequent planned construction works that it constituted part of the “Material Change of Use” touching the property and, following the decision of the Court of Appeal in Fox v Brisbane City Council (2003) 127 LGERA 390 might also be ‘impact’ assessable under IPA. [7] This submission was rejected in Reasons delivered ex tempore after the hearing on 20 August but, as the appellants now contend in connection with the question of costs, it was reasonably capable of being argued and not, therefore, frivolous or vexatious. [8] In Fox the appellants made two applications to develop adjacent land. The first involved a development approval to reconfigure a lot, and a preliminary approval for operational works including excavation and filling of the land. The second was for a preliminary approval for a Material Change of Use, a development permit to reconfigure the lot, and a preliminary approval for carrying out operational work. The second application required impact assessment, but the assessing authority (Brisbane City Council) determined the first was code assessable and did not, therefore, require public notification. At first instance1 this Court held that the stage 1 approval was invalid and the application should have been treated as one for building work and a Material Change of Use which therefore required, under City Plan, impact assessment. [9] The effect of the subsequent decision in the Court of Appeal (rejecting the Council appeal) was summarised by Dr Philippa England in the second edition of her text “Integrated Planning in Queensland” 2 at p 105: (The decision increases) uncertainty as to the role of … the Planning Scheme in supplementing and building upon the generic definitions of development in the IPA. The effect of a decision is that any type of development may, despite its classification in the Planning Scheme, be held to amount to a Material Change of 1 Fox v Brisbane City Council [2002] QPEC 049. 2 The Federation Press, Sydney, 2004. -- 3 of 6 -- 4 Use taking into account “the purpose of the work, its scale and other questions of fact and degree” (White J at [84]) … [10] The co-respondents’ application to demolish the houses was code assessable building work under the provisions of the Standard Building Regulation 19933 . The Brisbane planning scheme, City Plan, categorised it as exempt development4 ; and, relevantly, IPA provided that “exempt development” is development other than assessable development, or self assessable development5 . The appellants submitted that IPA s 1.3.7 (which provides that if a definition in a Planning Scheme is inconsistent with the definition under IPA, the meaning in IPA prevails) had the effect of overriding City Plan’s provisions and, if it was determined that the demolition was incidental to and necessarily associated with the making of a Material Change of Use (the subsequent development proposal) the demolition would, therefore, be “assessable” (like the excavation and filling in Fox). The definition of “exempt development” in IPA is, however, quite clear and the way in which it is identified in City Plan at chapter 3 part 4 does not give rise to any inconsistency which would attract the operation of IPA s 1.3.7. [11] Some reliance was also placed, by the appellants, upon certain Performance Criteria in chapter 5 of City Plan and, as I understood the submission, it was contended that because the relevant criterion applied to an application for a Material Change of Use of the subject land, (ie, for the development of units) then, despite the fact City Plan regarded the development as exempt, some connection had been shown sufficient to establish the demolition was ‘incidental to and necessarily associated’ with that Material Change of Use. I was not persuaded that these provisions gave the respondent Council power to assess the demolition, not least because the operation of the relevant Performance Criteria (P 11) appear to be specifically excluded in the section of City Plan entitled “Exempt Development Identified by the Plan” (ch 3, p 4) which commences “Despite anything to the contrary in the Plan …”. [12] Nor was I persuaded there was any basis for construing City Plan in a way which identified some inconsistency between the clear exemption applying to work of this kind under chapter 3 and the later, plainly more limited, provisions of chapter 5. [13] Counsel for the appellants submitted, nevertheless, that it was not unreasonable nor frivolous to argue, as he had, that the criterion may support a conclusion that, despite City Plan’s designation of the demolition as exempt, it nonetheless was (as his submissions asserted) “… incidental to and necessarily associated with the making of a material change of use of the land, and was therefore impact assessable. This was an arguably similar situation to Fox, and it was not frivolous to “test the boundaries” of the applicability of that decision.” [14] In Mudie v Gain River Pty Ltd (No 2) (2003) 2 Qd R 271 McMurdo P and Atkinson J said at 204: [36] Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious … 3 Standard Building Regulation 1993 ss 2, 4(1),(2) and (3), s 11(1)(a), s (31)(a), s (32); and, Building Act 1975, s 31(1) and (2). 4 City Plan ch 3 pt 4. 5 IPA, Sch 10. -- 4 of 6 -- 5 And Williams JA said, in that case, at 291: If a party resisted such an appeal by relying on assertions that were groundless then there is no reason why that party’s conduct should not be described as “frivolous or vexatious”. To adapt the phraseology of Dixon J, in such circumstances there has been an abuse of process in that the Court’s time and resources have been employed in exposing a groundless basis for resisting the appellant’s claim. Further, the meaning attributed to the word vexatious by Deane J in Oceanic Sunline Special Shipping Company Inc v Fray (1988) 165 CLR 197 at 247 also covers the situation; there it was said: “vexatious should be understood as meaning productive of serious and unjustified trouble and harassment.” [15] The co-respondents’ contention here is that the appellants’ application was patently unarguable or lacking in substance to a degree that no reasonable person, acting bone fide, would have brought it. I was referred to additional authority6 showing, not surprisingly, that proceedings would be categorised as frivolous or vexatious if they are obviously untenable, manifestly groundless or utterly hopeless but, as Quirk DCJ observed in Oakden Investments7 frivolity and vexatiousness “are not necessarily equivalent to the absence of a justifiable view as to the likelihood of success”. [16] As the Reasons delivered ex tempore on 20 August show, the submissions for the appellants on that occasion involved distinguishing the decision, and the circumstances arising in, Fox. Of course, the mere fact that an argument (and authority said to support it) attracts or warrants comment in a judgment is not the test of its calibre but, here, it was some acknowledgement of the fact that the decision in Fox caused me sufficient concern (as it had Dr England, whose commentary I had previously read) to consider whether, notwithstanding the very high hurdles presented to the appellants by a relatively straightforward reading of IPA, City Plan, and the Standard Building Regulations, it might yet provide some basis for the urgent relief the appellants sought. [17] I agree with Dr England that the decision of the majority in the Court of Appeal in Fox increases uncertainty about the role of planning schemes in supplementing and building upon the generic definitions of development in IPA, with consequences mentioned in the passage from her book set out earlier. Once that uncertainty is acknowledged it cannot be said the appellants’ application was utterly hopeless, or doomed to failure. At the highest, it might have been categorised as having fairly poor prospects of success (in the face of the statutory hurdles). The fact that a decision of the Queensland Court of Appeal provided some basis for the appellants’ argument seems to me to mean their application should, at worst, be categorised as unmeritorious 8 . Having regard to the general primary provision in IPA (s 4.1.23(1)) that ordinarily each party in these actions bears its own costs, I do not think s 4.1.23(2)(b) should be construed so that adventurous arguments, advanced in reliance upon a decision of an Appellate court of some complexity, should necessarily be visited with adverse costs orders. [18] Because an argument arose about the circumstances in which the parties came to appear again before the Court on 20 August it is also appropriate to find, as I do, 6 Attorney-General v Wentworth (1988) 14 NSWLR 481; Oakden Investments Pty Ltd v Pine River Shire Council [2003] QPELR 333; and Walton v Gardiner (1993) 177 CLR 378. 7 Supra, at para [14]. 8 As O’Sullivan DCJ did in Wilson v Laidley Shire Council (1994) QPELR 65, at 66-67. -- 5 of 6 -- 6 that those circumstances had the ultimate result that Counsel were before the Court on the morning of 20 August in any event and no additional costs arose, or should be awarded to the co-respondents, as a consequence of those circumstances. Otherwise, the application for costs by the co-respondents is dismissed. -- 6 of 6 --