What’s the cost of motor cross?

The Planning and Environment Court delivered a decision in the case of Drywound Pty Ltd v Lockyer Valley Regional Council & Ors [2017] QPEC 4, which involved determining cross-applications made by the parties for costs.

Drywound Pty Ltd v Lockyer Valley Regional Council & Ors [2017] QPEC 4 – What’s the case about?

The appeal was commenced by Drywound in May 2015 against the Council’s decision to refuse a development permit for a proposed motor-cross training facility on land in a rural area in Adare. There were a range of grounds for refusal which included noise.

The parties’ acoustic experts produced three joint reports in September, October and December 2016 respectively. The reports provided that the proposed development would fail the relevant noise criteria at a nearby undeveloped lot, which was nominated by the experts as a sensitive receptor. On 19 September 2016, the Council wrote to Drywound inviting it to abandon the appeal as it would be relying upon the findings in the joint report.

The hearing commenced in October 2016, but was adjourned as a consequence of changes to the proposed development. In December, Drywound’s solicitor was given leave to withdraw as the solicitor on the record. From about 14 December 2016, Mr Steer a representative of Drywound, took over the matter from the former solicitor. The hearing resumed on 23 January 2017 and on that day the Court made an order at Mr Steer’s request dismissing the appeal on the limited basis that Drywound no longer wished to prosecute the appeal.

Applications for costs were made by all the parties involved in the proceeding. The Court had regard to the parties’ applications and supporting evidence, and made the following orders:

• Drywound’s application be dismissed on the basis that the application was in part based on a false factual basis and the application had no reasonable prospects of success;
• the applications of the Council (which included costs on an indemnity basis) and submitters who elected to join the appeal be allowed in part primarily on the basis that Drywound should have:
  • reconsidered its position following the outcome of the September 2016 joint report of the acoustic experts and resolved to abandon the appeal well before the hearing commenced;
  • notified the parties that it was reconsidering its position in early December and informed the parties in early January that it had decided to abandon the appeal, rather than waiting until the hearing resumed.

Snapshot of Court’s consideration

In determining the cross-applications, the Court noted that it has a general discretion in relation to costs which is to be exercised judicially and there is no presumption that costs ought to follow the event or that there is some qualified protection against an adverse costs order.

Drywound’s application

Drywound’s application was principally based on the Council changing its position late in the proceedings in relation to the findings in the noise joint expert reports. Drywound asserted that its ultimate abandonment of the appeal was due to its inability to demonstrate compliance with the noise criteria at that sensitive receptor.

The Court determined that the application ought to be dismissed as it was in part based on a false factual basis and in any event had no reasonable prospects for success for a number of reasons including, there was a range of grounds of refusal not just noise, the Council at no time informed Drywound that the potential amenity impacts of the proposal were or could be demonstrated to be acceptable, Drywound incorrectly asserted that it relied on a report commissioned by the Council which indicated support for the proposal prior to commencing its appeal and the emergence of the sensitive noise receptor was sparked by the noise experts and not by the Council.

Councils and submitters’ applications

The Council’s application sought orders from the Court requiring Drywound to pay its costs for responding to Drywound’s application, making its own application and various events over the course of the proceeding. The submitters’ application only sought an order requiring Drywound to pay its costs for a specific event that occurred during the proceeding.

The Court considered the evidence put forward and made the following determinations:

• The Court made an order requiring Drywound to pay the Council’s costs on a standard basis for responding to Drywound’s application as the application was in part based on a false factual basis, had no prospects of success and the Council had drawn these matters to Drywound prior to the application being heard.
• The Court did not make an order requiring Drywound to pay the Council’s costs from the commencement of the appeal to 19 September 2016, as in its view, the appeal proceeded in a reasonably regular fashion, there was no suggestion that the appeal had no prospects, Drywound’s conduct of the proceeding was not unreasonable to the point of making an order for costs.
• The Court made an order requiring Drywound to pay the Council’s costs on a standard basis from 26 September 2016 to 13 December 2016, as Drywound had been put on notice since 19 September 2016 that the Council would be relying upon the findings of the acoustic experts’ September report, Drywound should have determined at that stage whether it would contest the findings of the report or abandon the appeal, and its failure to do so, tipped the balance in favour of making an order for costs.
• The Court made an order requiring Drywound to pay the Council’s costs on an indemnity basis and the submitters costs on a standard basis from 14 December 2016 to 23 January 2017 for the following reasons:
  • from 14 December 2016, the solicitor for Drywound was unable to make contact with the representative of Mr Steer, which ultimately resulted in the solicitor being given leave to withdraw as the solicitor on the record;
  • Mr Steer gave evidence that during this period he was considering all the information for himself and reviewing Drywound’s position;
  • Mr Steer did not communicate this to the other parties notwithstanding that he knew they would be preparing for the resumed hearing;
  • Mr Steer did not inform the parties in early January that he wished to abandon the appeal on behalf of Drywound, but instead waiting until the first day of the resumed hearing to do so.

Points worth noting

The Court has a general discretion in relation to costs which is to be exercised judicially. There is no presumption that costs ought to follow the event or that there is some qualified protection against an adverse costs order.