The case of BGM Projects Pty Ltd v Zacka & Ors  QPEC 20 concerned an application in a pending proceeding commenced by a developer (Developer) against an adjoining landowner (Landowner) in the Planning and Environment Court to strike out an originating application commenced by the Developer which sought enforcement orders to require the Landowner to refrain from committing development offences and to remedy the effect of development offences allegedly committed under the Integrated Planning Act 1997 (IPA) (Originating Application).
The Landowner sought orders that the Originating Application be struck out or permanently stayed, and that the Developer pay the Landowner's costs. In the alternative, the Landowner sought better particulars in respect of certain allegations in the Originating Application.
The Court found that it was not appropriate to grant the orders sought by the Landowner and therefore dismissed the application.
The Developer had commenced two proceedings against the Landowner; one in the Supreme Court and the other in the Planning and Environment Court. Both proceedings related to drainage and overland flow issues in connection with their adjoining properties.
The Developer in the Supreme Court proceeding alleges that the Landowner had unlawfully constructed a concrete "bund" that had caused drainage problems on the Developer's land, an elevated access using 180m3 of material, and additional works on State land (Works). The relief sought by the Developer included proposed orders that the Works are assessable development under the IPA and are unlawful, an injunction to require the Landowner to remove the Works, declarations that the Landowner is not entitled to cause a nuisance on the Developer's land as a result of the Works, and damages for nuisance.
The Developer in the Planning and Environment Court proceeding made identical allegations to those made in the Supreme Court proceedings. The relief sought by the Developer includes orders requiring the Landowner to remove the Works and an enforcement order to restrain the Landowner from committing further development offences.
The Landowner commenced this application in pending proceeding and made the following submissions:
the Planning and Environment Court proceeding commenced by the Developer is an abuse of process because it causes, or is likely to cause improper vexation or oppression, and therefore ought to be struck out or permanently stayed;
the Originating Application ought to be struck out in accordance with rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR);
the Developer ought provide better particulars in respect of the Originating Application;
the Developer ought pay the Landowner's costs of the application in pending proceeding.
The Court found that the Originating Application is not vexatious or an abuse of process
The Landowner argued that the Originating Application was an abuse of process and made the following six arguments:
Submission 1 – the Supreme Court and the Planning and Environment Court proceedings are the same in substance.
Submission 2 – the remedies sought in each proceeding are equally effective and that an injunction by the Supreme Court and an enforcement order by the Planning and Environment Court are of "no moment".
Submission 3 – the decisions of More v Inglis (1976) 9 ALR 509 and Slough Estates Ltd v Slough Borough Council  Ch 299 support the view that matters concerning the same parties and same issues being heard in separate courts is an abuse of process.
Submission 4 – all matters the subject of the Planning and Environment Court proceeding are capable of being heard in the Supreme Court proceeding.
Submission 5 – not staying the Planning and Environment Court proceeding would be to endorse a party pursuing enforcement proceedings in the Planning and Environment Court to remove unlawful development, and the same party at the same time, pursing proceedings in the Supreme Court seeking injunctions for the removal of the same.
Submission 6 – there is a risk of inconsistent findings.
Submissions 1 and 4
With respect to the Landowner's first and fourth submissions, the Court had regard to the Landowner's defence and counterclaim in the Supreme Court proceeding which relevantly stated that the Supreme Court lacked jurisdiction to determine allegations about unlawful development, and that the Supreme Court ought make consequential orders and declarations.
The Court held that the Landowner's defence and counterclaim was inconsistent with the submission that the Supreme Court proceeding is the same in substance as the Planning and Environment Court proceeding. The Court additionally found that as the Planning and Environment Court is a specialist court, it is well placed to make a determination on the common issues between the parties, creating an issue estoppel. On this basis, the Court found that the Originating Application was not vexatious or oppressive.
With respect to the Landowner's second submission, the Court did not accept that the remedies in each proceeding are "equally effective" or that the distinction between an injunction granted by the Supreme Court and an enforcement order granted by the Planning and Environment Court are of "no moment". The Court noted that under section 180(9) of the Planning Act 2016 (Planning Act), an enforcement order attaches to the premises and binds the owner, the owner's successors in title and any occupier of the premises. Additionally, the Court noted that section 180(8) of the Planning Act makes it an offence to contravene an enforcement order. The Court noted that this is not true of an injunction, as an injunction is an equitable remedy in which a court orders a person to do or to refrain from doing something. As a result the Court rejected the Landowner's submission.
Submissions 3 and 5
The Court found that the Landowner's third and fifth submissions were unpersuasive. The Court found that unlike in Slough Estates Ltd v Slough Borough Council  Ch 299, the Developer is not progressing both matters concurrently and noted that the Supreme Court proceeding has yet to proceed past the pleading stage. The Court noted that each proceeding is to be determined on its own facts. The Court held that each court has distinctive powers in relation to relief, as for example, the Planning and Environment Court is not able to determine claims for damages for nuisance.
Additionally, the Court noted a third related enforcement proceeding in the Planning and Environment Court commenced by the Fraser Coast Regional Council (Council) against the Landowner in which the Council has applied to join the Developer as a party. The Court noted that there is substantial cross over between the Council's proceeding and the Developer's proceeding in the Planning and Environment Court. The Landowner conceded that if the Developer's proceeding is not struck out or permanently stayed, the Developer's proceeding ought be joined with the Council's proceeding. The Court additionally concluded that any such joinder would reduce any vexing impact. The Court therefore rejected the Landowner's third and fifth submissions.
Lastly, the Court considered the Landowner's sixth submission that the two proceedings have the potential to result in inconsistent findings. The Court found that the submission does not sit comfortably with the Landowner's opposition to the Developer being joined as a party to the Council's enforcement proceeding in the Planning and Environment Court. The Court noted that if the Developer is not joined as a party to the Council's enforcement proceeding, the Developer will not be bound by the determination of the Court in that proceeding. The Court therefore noted that in those circumstances the risk of an inconsistent finding still existed in respect of the Council's enforcement proceeding and the Supreme Court proceeding.
The Court found that the Originating Application ought not be struck out
The Landowner sought to strike out the Originating Application under rule 171 of the UCPR on the basis that the Originating Application discloses no reasonable cause of action, and is frivolous and vexatious.
The Originating Application sought relief under the IPA to remedy the effect of a development offence and also sought to restrain the commission of future development offences constituted by carrying out assessable development without the necessary development permits.
The Court noted that the power derived under rule 171 of the UCPR is one to be exercised with caution as a party ought not be improperly deprived of the opportunity for a hearing. The Court found that even though the Originating Application did not clearly identify what development offence the Landowner allegedly committed, it was not persuaded that the Originating Application did not demonstrate a cause of action. The Court concluded that the Developer ought be given the opportunity to re-plead its case.
The Court therefore concluded that the Originating Application ought not be struck out.
The Court found that it was not necessary for the Developer to provide further and better particulars
The Court had "serious misgivings" about whether the Developer ought provide further and better particulars given that the Developer had filed extensive evidence.
The Court found that the evidence filed by the Developer "helpfully" revealed the nature of the case and therefore rejected the Landowner's argument.
The Court rejected the Landowner's argument that the Developer pay its costs
The Court noted that the Landowner did not specify the grounds on which an order for costs ought be made and therefore refused to make the order.
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