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Planning & Environment Court Decision

Posted by Michael Quirk on 26 November 2015

Council Recovers Costs Against Dilatory Developer

The P&E Court's decision in Hartley & Hartley v Isaac Regional Council & Anor [2015] QPEC 56 has reminded all parties to a proceeding, that their obligations to the Court and other parties cannot be taken lightly.  Pro-active Councils dealing with dilatory developers are not without recourse and may be entitled to an award of costs where a developer:

  • fails to seek advice regarding its prospects of success prior to commencing proceedings, or at an early stage;
  • withdraws from or discontinues a proceeding unilaterally at a late stage, in circumstances that constitute a surrender; or
  • acts unreasonably, including by failing to comply with court orders and rules.   

The case concerned two developer appeals against Isaac Regional Council, represented by King & Company.  The appeals were against the Council's refusal of two development applications over adjoining parcels of land at Coppabella, for a Works Camp and associated ERA, and a Motel and Caretaker's Residence.

After commencing the Appeals, the Appellants persistently failed to comply with the Court Rules and disregarded court ordered timetables in both Appeals, most seriously by failing to actually engage experts it had nominated in each Appeal.

The Council brought applications to strike out the Appeals for want of prosecution.  While the Appellants resisted the strike out applications, by relying upon evidence from their project manager that they were ready to proceed with the Appeals, the Court made a guillotine order that would operate to dismiss the Appeals with costs, in the event that the Appellants failed to comply with the remaining steps in the appeal by a set date.

Ultimately, the Appellants discontinued both appeals before they could be heard. After the Council filed costs applications in each appeal, it came to light that the Appellant's had received written advice from an economic need expert during the appeals which concluded that need could not be established for either the Motel or the Works Camp. At the hearing of the costs applications the Council argued that:

  • it had wholly succeeded in its defence of the refusals the subject of each Appeal by virtue of the discontinuance or "surrender" by the Appellants ("the surrender point");
  • the Appellants had commenced or participated in the proceedings without reasonable prospects of success ("the prospects of success point");
  • the Appellants had acted unreasonably in the conduct of the proceedings, and as a consequence, the Council had incurred significant expense ("the unreasonableness point").

In response, the Appellants sought to attribute blame for the circumstances those arose upon:

  • a "sudden" collapse of the mining industry in the region.
  • conduct of its nominated experts.
  • the Council, in respect of a prior dispute regarding development application fees.

On the surrender point, the Court found that the unilateral decision of the Appellants to discontinue their appeals constituted a "surrender" and that, in all the circumstances of the case, the surrender alone would suffice to justify an order for costs.

In respect of the prospects of success point, the Court decided that because there was acceptable evidence to establish conflict with the relevant planning instruments, the appellants should have been focused on demonstrating a need for the proposals, need being a potential sufficient ground that could warrant approval of the proposals despite the evident conflict.  The Court found it remarkable that the Appellants had not sought economic need advice until well after the appeal had commenced. 

The Appellant's evidence that the collapse of the mining industry in the region had been sudden and had only occurred after the commencement of the Appeals was rejected as being contrary to the agreed findings in the Economic Need Joint Experts' Report.  The Court concluded that it was the clearest case of a party commencing and continuing a proceeding without reasonable prospects of success, and again noted that it would have awarded costs to the Council for this reason alone.

On the unreasonableness point, the Court found that the Appellants' conduct constituted an egregious failure to comply with court orders and the Court Rules, resulting in unnecessary expense to the Council.
In response to allegations by the Appellant that a historical dispute with the Council over development application fees ought disentitle Council to its costs in the Appeal, the Court observed that the circumstances alleged were entirely neutral and in most cases, the relevant disentitling conduct by a party would need to occur in the course of the proceeding, not prior to its commencement.

The Court awarded Council its costs of the Appeals and the costs applications on the standard basis, excluding costs already payable by the Appellants pursuant to previous costs Orders.

King and Company represent a number of local authorities in matters heard by the P& E Court.  For more information, or to discuss how we may assist you, please contact Michael Quirk of our office on (07) 3243 0000.

Michael QuirkAuthor: Michael Quirk
About: Michael is a senior partner in the firm's Planning & Environment Group.
Tags: Local Government Planning & Environment Dilatory Developers

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