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 COURT ORDERED SEVERAL INTERIM ORDERS ALLOWING MORE TIME TO ACHIEVE THE REGULARISATION OF THE LAND

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.

THE ORIGINAL APPLICATION WAS OVERTAKEN BY THE PARTIES' READINESS TO AGREE TO INTERIM ORDERS WHICH RESULTED IN THE COURT MAKING NO DECISIONS IN RELATION TO THE ORIGINAL ISSUES

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.

ALTHOUGH THE COURT FOUND THAT THE OWNER HAD LIMITED FINANCIAL MEANS, FURTHER COSTS WERE INCURRED BY THE COUNCIL DUE TO ONGOING DELAYS

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 ORDERED PAYMENT OF SOME OF THE COUNCIL'S COSTS OF THE APPLICATION, INCLUDING INVESTIGATION COSTS

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.

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Authors
Ian Wright
 
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