Australia: The Court ordered the recovery of some, but not all costs in respect of proceedings for enforcement orders

In brief

The case of Gympie Regional Council v Tregoning [2017] QPEC 20 concerned an application for costs, including investigation costs, by the Gympie Regional Council in relation to an application made by the Council for an enforcement order under section 604 of the Sustainable Planning Act 2009 in respect of an owner's use of land at Imbil.

The case had a difficult and prolonged history. During the life of the proceeding, the issues shifted from the past illegal use of the land to the issue of regularising the present and future use of the land.

Ultimately, the Court found a development offence had been committed and made enforcement orders about the development approvals to be sought by the owner regarding plumbing work and building work. The Council sought its costs of and incidental to the proceeding.

In support of its application for costs, the Council directed the Court to the outcome, being the making of the final enforcement order and the process involved, and submitted that there was an absence of reasons to militate against the application of the general or ordinary rule for costs. The Council submitted that it should be entitled to recover all of its costs of the proceeding, including investigation costs.

The owner submitted that attempts had been made to resolve the issues with the Council and therefore opposed any order for costs. The owner also submitted that he was impecunious, in ill-health and did not have legal representation, being discretionary factors against an award of costs.

In deciding the application for costs, the Court ordered the owner to pay some of the Council's costs of the application, including investigation costs, as agreed or as assessed on the standard basis. The Court did not, however, order the owner to pay the Council's costs for an appearance before the Court because the owner was not properly served and the Court only awarded 50% of the costs incurred by the Council thereafter due to the change in the direction of the application.


The Council investigated the land because of a complaint made by a neighbour about negative amenity impacts arising from the use of the land, in particular the noise from a generator, loud music, shouting, barking dogs, intrusion from car headlights and the practice of noticeably toileting in the open and leaving waste products near the boundary of the neighbour's property.

After inspecting the land, the Council submitted to the Court that the land contained structures associated with the land being used for residential purposes, including a large bus, a large caravan with various structures attached to it, a corrugated iron toilet structure, a large water tank, a mini-bus with structures attached for shelter and a power generator. The Court then agreed with the description submitted by the Council's town planner that the use resembled an occupation of the land as an encampment at which several people resided on a permanent or semi-permanent basis.

Accordingly, the Council made an application for an enforcement order under section 604 of the Sustainable Planning Act 2009. Between 30 September 2016 and 9 December 2016, the application came before the Court three times. At the first two reviews, the Court made interim orders allowing the owner more time to regularise the use of the land and provided the Council with inspection rights.

On 9 December 2016, a final order was made. This delay was due, in part, to the shift of the focus of the application and the subsequent submissions of the owner that he was continuing to work towards achieving the regularisation of the ongoing use of the land as well as satisfying the Council's concerns in respect of the past use of the land.


In making an order for costs, the Court held that it was important to have regard to the nature of the proceedings and the costs incurred by the Council over the prolonged period, as well as the "obvious public interest of securing obedience to planning laws".

The issues of the proceeding shifted from the past illegal use of the land to the issue of regularising the present and future use of the land primarily because of the owner's right to the lawful use of his land, as well as it being his only place of residence.

In attempting to regularise the use of his land, the owner was eager to agree to the interim orders as well as the final order. Whilst the Council raised issues in relation to the lack of compliance or at least delay complying with the interim orders, compliance was better achieved with each interim order as the parties inched closer to regularising the use of the land.

With each iteration of the interim orders which allowed more time for regularising the use of the land, the Court was never required to decide the issues of the original application or whether the owner had complied with any of the previous interim orders. This process resulted in the shift in the issues for consideration before the Court.


At the time of the final order, the only remaining concern was the removal of some remnants of the past use of the land. However, as they were not being used for ongoing residential purposes, it was clear that the Council could not maintain insistence on complete removal of these items, the specific subject of the earlier interim orders. Accordingly, the relative success of the parties was considered to be moving in different directions.

The Court rejected the Council's claim that the owner acted unreasonably, participated in the proceedings without reasonable prospects of success and that he failed to comply with the orders made by the Court. However, the Court also rejected the claim that delays on the part of the owner may be excused because of his ill-health. The Court also held that supporting information submitted by the owner did support a conclusion that he had limited financial means and that this complicated his ability to progress the interim orders.

Regardless of the owner's limited financial means, the Court held that the Council's reliance on the delay and absence of any meaningful response to its communications prior to the making of the application was justified as it was only by commencing proceedings in the Court that an outcome was achieved. Further, in considering Latoudis v Casey (1990) 170 CLR 534 in the context of compensatory principles applicable to the issue of costs, the Court found further costs were incurred due to ongoing delays in achieving the regularisation of the acknowledged unlawful use of the land.


The Court held that it was appropriate to allow the Council to recover some of its costs of the application, including investigation costs, under section 457(6) of the Sustainable Planning Act 2009. The Court excluded the costs associated with a court appearance for which the owner was not properly served and further, due to the shift of the focus of the application, ordered the owner to pay only 50% of the Council's costs thereafter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Wright
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions