In brief

The case of Favero v Council of the City of Gold Coast [2019] QPEC 61 concerned an application to the Planning and Environment Court (P&E Court) for costs arising out of an appeal commenced by an Appellant against the decision of the Gold Coast City Council (Council) to issue the Appellant with an enforcement notice for an alleged development offence under section 164 of the Planning Act 2016 (Planning Act).

The Appellant made the application for costs under section 60 of the Planning and Environment Court Act 2016 (P&E Court Act) after the P&E Court ordered that the appeal proceeding be allowed because the Council withdrew the enforcement notice the subject of the appeal.

The P&E Court found that the circumstances of the appeal warranted a departure from the general rule stated in section 59 of the (P&E Court Act), that each party to a proceeding must bear their own costs for the proceeding, and allowed the application. 

The Council was ordered to pay the Appellant's costs in respect of the appeal and the application on the standard basis.

Enforcement notice 

The subject land was located on community title scheme land at Helensvale (Land) with creek frontage and access to a salt water creek to the north. The area of land between the Land and the salt water creek (Covenant Area) was common property subject to the requirements of a registerable planning covenant required to be complied with under condition 24 of a development permit for reconfiguring a lot granted by the Council in 2008 (Development Approval). 

The Council issued the enforcement notice to the Appellant because the Council believed, contrary to the requirements of condition 24 of the Development Approval, that the Appellant had erected a fence in the Covenant Area, which area was required to be preserved for coastal protection and management purposes. 

The Appellant commenced the appeal against the enforcement notice and contended that condition 24 of the Development Approval did not apply to the Appellant but rather to the applicant of the Development Approval, and that in any event, the Appellant had not caused any building or structure to be erected on the Covenant Area in breach of section 164 of the Planning Act.

Application for costs

Section 60 of the P&E Court Act gives the P&E Court the discretion to grant a costs order in, relevantly, one or more of the following circumstances: 

  • the proceeding was started or conducted for an improper purpose (section 60(1)(a)); 

  • the proceeding was frivolous or vexatious (section 60(1)(b)); 

  • a party to the proceeding introduced or sought to introduce new material (section 60(1)(e)); 

  • a party has defaulted in the P&E Court's procedural requirements (section 60(1)(f)); 

  • a local government failed to properly discharge its responsibilities in the proceeding (section 60(1)(i)). 

Appellant's position 

The Appellant sought an award for costs on the standard basis up to 2 May 2019, and on an indemnity basis thereafter, on the following alleged grounds:

  • The conduct of the appeal proceedings by the Council up until its withdrawal of the enforcement notice was a breach of the obligations of a party bearing the onus under section 45(3) of the Planning Act to establish that the appeal should be dismissed, and therefore the Council acted for an improper purpose.

  • The continued conduct of the appeal proceedings by the Council and its position that the Appellant had committed a development offence was frivolous and vexatious, because the Appellant had offered to the Council to resolve the appeal and each party bear their own costs, and the Council had no prospects of success in the appeal.

  • The Council sought to introduce new material by contending that the Appellant occupied the Covenant Area.

  • The Council failed to comply with the obligation of a local government to properly assess the merits of a case and acknowledge and address its shortcomings. 

Council's position 

The Council's position was that it ought not have costs awarded against it for the following reasons: 

  • There was no improper purpose as a local government's proper purpose is the enforcement of the planning laws within its local government area, as was identified in the case of Warringah Shire Council v Sedevic [1987] 19 NSWLR 335 [at page 340].

  • The conduct of the proceedings by the Council was not improper or vexatious as the Council:

    • did not file a proper response to the appeal proceeding because the matter was summarily terminated; 

    • was entitled to give an enforcement notice to the Appellant as either owner or occupier of the Land, and that it was undeniable that a development offence was committed by someone on the Land; and 

    • rejected the Calderbank offer of the Appellant because the Council considered the conditions contained in the offer to be unreasonable and in breach of condition 24 of the Development Approval, which has been acknowledged by the P&E Court in Moramou2 Pty Ltd v Brisbane City Council (No 2) [2019] QPEC 22 to be an unattractive and irrelevant consideration to a costs application in similar circumstances. 

  • The Council only introduced evidence to engage in the issues arising out of the notice of appeal. 

  • There was no loss or prejudice to the Appellant by the delay of the Council in filing for directions in the appeal proceeding and that the Appellant could have also taken such a step after filing the notice of appeal.

  • There was no reported decision of the P&E Court awarding costs in similar circumstances. 

P&E Court awards costs on the standard basis  

The P&E Court noted the default position that each party bear their own costs, and that this position would only be varied where the circumstances contemplated by section 60 of the Planning Act have been made out. 

The P&E Court held that the evidence submitted by the parties did not establish any of the following: 

  • an improper purpose; 

  • a default by the Council in complying with the P&E Court's procedural requirements; 

  • a default by the Council in the discharge of the Council's responsibilities as a local government. 

The P&E Court did find, however, that the Council's giving of the enforcement notice to the Appellant and the Council's initial resistance to the appeal proceeding fell within the category of being frivolous and vexatious. 

Conclusion 

The P&E Court rejected the Appellant's arguments in respect of improper purpose, default of the procedural requirements, and default of the obligations of a local government, but allowed the application for costs on the standard basis as the resistance by the Council was within the category of frivolous and vexatious.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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