Dawson & Anor v Maroochy Shire Council & Ors [2003] QPEC 59 [2004] QPELR 254

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: B S & E K Dawson v Maroochy Shire Council & Ors [2003] QPEC 059 PARTIES: B S DAWSON & E K DAWSON (appellants) v MAROOCHY SHIRE COUNCIL (respondent) AND PALM INN PTY LIMITED & BRIAN WILLIAM HOOPER (co-respondents) FILE NO/S: 11/02 DIVISION: Planning & Environment Court PROCEEDING: Application DELIVERED ON: 20 January 2003 DELIVERED AT: Maroochydore HEARING DATE: 13 January 2003 JUDGE: K S Dodds DCJ ORDER: Application dismissed CATCHWORDS: COSTS ORDER – co-respondents’ application for an order the appellants pay its costs for an appeal, whether appellants instituted appeal to delay or obstruct development of a motel, whether the proceeding was frivolous or vexatious. Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor, P&E Appeal, 2979/02, 17 December 2002; Mudie v Gainriver Pty Ltd & Gatton Shire Council [2002] QCA 546; Integrated Planning Act 1997, s 4.1.23. SOLICITORS: Lestar Manning Lawyer for co-respondents B S Dawson in person [1] This is an application by the co-respondents for an order the appellants pay the co- respondents’ costs of an appeal to the Planning and Environment Court. [2] The appellants were adverse submitters to the application the subject of the appeal. [3] On 10 October, 2002 in its reasons for judgment the court indicated the appeal would be dismissed and the application approved subject to conditions. The -- 1 of 4 -- 2 conditions required were those which were attached to the approval by the respondent Maroochy Shire Council for the development application together with four additional conditions indicated required by the Court. The appeal was further adjourned for formal orders reflecting the reasons for judgment. [4] On 10 December, 2002 the co-respondents made an application for the costs order the subject of these reasons. [5] On 13 December, 2002 the court ordered the appeal be dismissed and the application for a development permit be approved subject to the conditions indicated. The application for costs was adjourned to 13 January, 2003 when it proceeded. [6] Section 4.1.23 of the Integrated Planning Act 1997 (IPA) provides relevantly: “(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 for giving evidence at the proceeding) as it considers appropriate in the following circumstances – (a) The court considers the proceeding was instituted merely to delay or obstruct; (b) The court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious; - - - ”. [7] The co-respondents’ application relied upon the parts of section 4.1.23 I have set out. [8] The co-respondents submitted IPA has broadened the circumstances in which the Planning and Environment Court may exercise its discretion to award costs. It urged that the correct approach was to consider the objective facts rather than self- serving statements of the respondent to an application for costs. [9] I will not repeat what is in the earlier reasons for judgment. The principle facts relied upon by the co-respondents in support of their application were that the appellants: • were the proprietors of a nearby motel; • had raised a large number of issues in the notice of appeal and in further particulars; • did not seek the advice of nor call at the hearing any persons with expertise in the areas raised in the grounds of appeal; and • called only one witness other than the male appellant, a council officer with apparent expertise in urban design who had opposed the respondent’s approving the application and whose opposition came to the appellants’ notice during discovery. -- 2 of 4 -- 3 Further that the male appellant (according to the co-respondent Hooper) said to him sometime after the appeal was initiated words to the following effect: “If your motel is approved than I won’t be able to sell mine,” after he had said to him words to the effect, “I can’t understand why you are objecting my motel”. [10] It was submitted that the inference should be drawn that the appeal was instituted and pursued to delay or obstruct the development of another motel in the area, that the issues raised lacked any merit and that the proceeding was frivolous or vexatious. [11] The male appellant in an affidavit filed on 12 December, 2002 apart from denying that the appeal was lodged to obstruct or to delay said that the appellants had indicated to the respondent and co-respondents that the material before the respondent upon which it based its decision could be the material before the Planning and Environment Court. It was the co-respondents who decided to go beyond what they had placed before the respondent, engage experts, and place evidence from those experts before the Court. [12] The discretion to make a costs order exists only in limited circumstances. The circumstance in section 4.1.23(2)(a) IPA requires not just that the person instituting the proceeding have a desire to delay or obstruct but that was their only purpose. As Quirk DCJ observed in Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor, P&E Appeal, 2979/02, 17 December 2002, the operative word is “merely”. For section 4.1.23(2)(b), a lack of success does not necessarily show that the proceeding was frivolous or vexatious: Mudie v Gainriver Pty Ltd & Gatton Shire Council [2002] QCA 546, judgment delivered 13 December 2002. Nor are “frivolous” or “vexatious” “necessarily equivalent to the absence of a justifiable view as to the likelihood of success”: Oakden Investments Pty Ltd. [13] Reference to other cases in the Planning and Environment Court indicates a cautious approach to finding proceedings are frivolous or vexatious. That is because the present and previous planning legislation recognises and provides expression for the wider public interest in planning issues, that is, not only the interests of an applicant or a local authority. Nonetheless, in an appropriate case the circumstances of the case, public policy considerations and the interests of justice may result in the discretion being exercised under one of the subparts of section 4.1.23(2). [14] I am not persuaded that this case is one where on either ground advanced costs should be awarded against the appellants. The appellants were perfectly entitled to exercise their right under the legislation to appeal. They set out as grounds of appeal what they perceived to be objectionable about the respondent’s approval. They were undoubtedly concerned to preserve as they perceived it their commercial interest. It does not necessarily follow that the proceeding was therefore instituted merely to delay or obstruct or that the resulting proceeding was frivolous or vexatious. I do not find that preservation of commercial interest was purely and simply their only concern. Even if it was it would not follow necessarily a costs order would be made. No subpart of section 4.1.23(2) provides in the same or equivalent terms. The court must still consider whether in terms of subsection (2) the discretion is enlivened and is required to be exercised. I consider the appellants also held a genuine belief and concern that the proposed development would in itself and as a precursor lead to spoilation of the largely rural green vista on the -- 3 of 4 -- 4 eastern side of the Nambour Connection Road and was contrary to the Woombye local area plan. [15] Additionally, I am unable to find the appellants acted unreasonably throughout the appeal. They were not legally represented so the grounds of appeal and particulars of those grounds may not have been expressed with as much precision as they may have been by an experienced planning lawyer. However they were not unreasonable. They did not seek to unduly delay or extend the appeal but were prepared to present their case against the material which had been before the respondent. [16] Moreover following upon the evidence of various expert witnesses called by the co- respondents and respondent some additional conditions were attached to the approval. [17] The application is dismissed. -- 4 of 4 --