PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: Phipps v The Chief Executive Department of Local Government, Infrastructure and Planning and Phipps v Somerset Regional Council and Anor [2018] QPEC 25 DOUGLAS, COLEEN, CHRISTINA AND JULIA PHIPPS (appellant) v THE CHIEF EXECUTIVE DEPARTMENT OF AGRICULTURE AND FISHERIES (respondent) and DOUGLAS, COLEEN, CHRISTINA AND JULIA PHIPPS (appellant) v SOMERSET REGIONAL COUNCIL (respondent) and THE CHIEF EXECUTIVE DEPARTMENT OF LOCAL GOVERNMENT, INFRASTRUCTURE AND PLANNING (co-respondent) FILE NO/S: 1297/17 and 2195/17 DIVISION: PROCEEDING: ORIGINATING COURT: Planning and Environment Hearing Planning and Environment Court of Queensland DELIVERED ON: 18 May 2018 DELIVERED AT: Brisbane, QEII

2 HEARING DATE: 29 March 2018 JUDGE: ORDER: CATCHWORDS: COUNSEL: Rackemann DCJ The appellants are to pay the costs of the respondent to appeal 1297 of 2017 and the respondent to appeal 2195 of 2017 for 19 December 2017 to 15 February 2018 to be assessed on the standard basis. The appellants are to pay the costs of the co-respondent to appeal 2195 of 2017 from 26 December 2017 to 15 February 2018 to be assessed on the standard basis. PLANNING AND ENVIRONMENT COSTS Where appellant persisted in appeal without expert evidence and in the face of adverse reports from experts engaged by other parties whether frivolous or vexatious. The appellant appeared on his own behalf J Dillon for the respondent in 1297/17 D Kevin (sol) for the respondent in 2195/17 D Whitehouse for the co-respondent in 2195/17 SOLICITORS: The appellant appeared on his own behalf The Department of Agriculture and Fisheries for the respondent in 1297/17 King & Co for the respondent in 2195/17 Herbert Smith Freehills for the co-respondent in 2195/17

3 [1] These are applications for costs against the appellants. The applications are for costs from various dates until 15 February 2018, 1 being the date upon which I gave extempore reasons for judgment dismissing the appeals insofar as they sought an approval for an expansion of the appellants intensive poultry farm from an existing 250,000 bird operation to a 700,000 bird farm. Thereafter, the appellants, for the first time, sought an approval in part to allow their existing farm to be operated in accordance with the mode of operation sought in their development application. After taking further advice from the experts, the other parties did not oppose that approval in part. [2] It was accepted by the applicants for costs that their applications fall for consideration under the new costs regime rather than the provisions which formerly provided for an open discretion prior to 19 May 2017. 2 Accordingly, the general rule is that each party must bear the party s own costs for the proceedings. However, the court may make an order for costs in certain circumstances. Those circumstances relevantly include where: the Court considers the proceeding to have been frivolous or vexatious; the Court considers an applicant for a development application did not give all the information reasonably required to assess the development application; an applicant does not properly discharge its responsibilities in the proceeding. [3] The Court of Appeal considered the words frivolous or vexatious in the context of an analogous provision contained in the Local Government (Planning and Environment) Act 1990 in Mudie v Gainriver Pty Ltd (No. 2) 3 where McMurdo P and Atkinson J observed: [34] It seems likely that one purpose of s.7.6(1) of the Act, which sets out the general rule that each of the parties bear their own costs, consistent with the objectives of the Act, is to ensure that citizens are not discouraged from appealing or applying to the Planning and Environment Court because of fear that a crippling costs order might be made against them. The 1 The applications, in so far as they were for costs beyond 15 February 2018 were not pressed. 2 Appeal 2195/17 was commenced on 20 June 2017 subsequent to the amendment of s 457 of the Sustainable Planning Act (SPA) to introduce the new costs provisions. The transitional provisions of s 311 of the Planning Act apply the provisions of SPA to this appeal. The respondent to appeal 1297/17 accepts that it should be taken to have commenced on 20 July 2017 after the amendments to SPA, when the appellants were given leave to file an amended notice of appeal and time for filing was extended. It was correctly submitted that in the absence of transitional provisions for proceedings under the Environmental Protection Act the new cost provisions now contained in the Planning and Environment Court Act (PECA) applied to the de novo appeal, since costs provisions are procedural and ordinarily apply to part heard cases (Sykes v Queensland Gas Company & Anor [2009] QCA 163). Nothing turns on that however, because the relevant costs provisions of the SPA as amended and the PECA are identical in effect. 3 [2003] 2 Qd R 271.

4 provision no doubt also recognises the public interest character of some applications to the Planning and Environment Court. For that reason, there is often an understandable judicial reluctance, demonstrated in the planning cases referred to by his Honour, in finding proceedings brought by citizens to be frivolous or vexatious. [35] The words frivolous or vexatious are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made the court knows the issues which have been litigated whilst in interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. The Macquarie Dictionary defines frivolous as of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct and vexatious as 1. causing vexation; vexing; annoying [36] Unquestionably, something much more than a lack of success needs to be shown before a party s proceedings are frivolous or vexatious [37] Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice. Williams JA observed: [59] For the appellant to succeed the court must be satisfied that the appeal in the Planning and Environment Court was frivolous or vexatious within the meaning of those words in the section of the legislation empowering the court to make an order for costs. Each word is used in everyday language and there is little doubt as to the ordinary meaning of each. The shorter Oxford English Dictionary defines frivolous as follows: 1. Of little or no value or importance, paltry; (of a claim, charge etc) having no reasonable grounds. 2. Lacking seriousness or sense; silly. That work defines vexatious as follows:

5 1 Causing or tending to cause vexation, annoyance, or distress; annoying, troublesome. 2. In law. Of an action; instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant. [60] So far as the law is concerned the terms have been incorporated into rules of court as a ground upon which a claim may be struck out summarily. If a proceeding discloses no viable cause of action it can be struck out as being frivolous or vexatious. In consequence something of a gloss has been superimposed upon the ordinary meaning of each word when used in that context. But when the terms are not used in the context of striking out a claim which is groundless that gloss is no longer relevant and one must revert to the ordinary meaning of each word. [4] The legislation includes as an example, 4 where the court considers a proceeding was started or conducted without reasonable prospects of success. It was submitted that the appeal, insofar as it sought an increase in the operation, was frivolous or vexatious. [5] The central issue confronting the appellants application for an expanded operation was the potential for odour nuisance. That was so from the time of the application stage. The development application had been supported by an assessment by Pitt & Sherry dated 9 December 2016 which carried out odour dispersion modelling which showed an exceedance of the 2.5 OU criterion at a small number of residences. This resulted in an information request, dated 30 January 2017, which, amongst other things, requested the applicant to submit a proposal demonstrating compliance with the criterion. The appellant however declined to do so asserting, instead, that their site was a good one in a suitable area. [6] The Pitt & Sherry report was subject to an independent expert peer review which was provided to the appellants on 2 August 2017. That review found the Pitt & Sherry report to be wanting. It concluded that the report did not adequately demonstrate acceptable outcomes and approval of the development application was not recommended based on the report. [7] One of the matters raised in the peer review was inappropriate adoption of a K factor of 1.5 as opposed to a factor of 2.2. The appellants had monitoring done by another consultant, AMG. They had the results of that monitoring by September 2017. Those results revealed a calculated K factor for the sheds varying from 1.8 to 3.5 which did not justify the adoption of a k factor of 1.5 or a departure from a K factor of 2.2 for modelling purposes. 4 See s 457A(b) of SPA and s 60(1)(b) PECA.

6 [8] In October of 2017 the issues in the appeal were notified. This included the appellants providing their rebuttal to consolidated reasons for refusal. Those rebuttal documents contained assertions that the proposed development would not result in odour impacts. In November Mr Phipps initially proposed to notify himself as an expert but ultimately withdrew that nomination. The appellants did not nominate any expert or attempt to call any expert. [9] On 12 December 2017 the appellants were provided with the joint expert report of Mr Welchman and Mr King. In that report the experts agreed, amongst other things, that: The Pitt & Sherry report significantly underestimated the potential odour impact of the expanded poultry farm. Further dispersion modelling conducted using the Pitt & Sherry model as a starting point but with different inputs, showed predicted odour concentrations in excess of the odour criterion at 26 sensitive receptors. The Pitt & Sherry report shows that the proposed development is likely to result in odour impacts which will cause an unreasonable adverse impact upon the amenity of nearby sensitive uses and the odour monitoring conducted by AMG shows that odour emissions are likely to be significantly higher than was assumed in the Pitt & Sherry report. Approval of the development application is not supported by the appellant s odour assessment and it is appropriate to refuse a development application on the grounds of adverse odour amenity impact. [10] Given their failure to nominate any expert, the appellants must have known, by this stage, that not only was their assertion of an absence of adverse odour impact not supported by any expert evidence obtained by them, as the party with the onus in the appeal, but that it also flew in the face of what was to be the evidence of the two experts to be called by the other parties. [11] By this stage, the appellants had been put on notice as to the fact that they bore the onus in the appeals and as to the potential for a costs application to be made in the event that the matter went to trial without the appellants producing appropriate evidence in support of their case. In that regard, the respondent in appeal 1297 of 2017 had written to the appellants on 20 September 2017 stating, in part in an appeal of this type, the appellant bears the evidentiary onus of establishing that the appeal should be upheld by the court. In that regard, the department seeks to inform you that in the absence of you furnishing further material including appropriate expert evidence that advances your case, the department reserves its position in respect of the issue of costs in the appeal." The same respondent sent a further letter, dated 12 December 2017, referring to its previous correspondence and advising, in part, as follows:

7 The issue in this proceeding is whether the odour impacts from the proposed development are acceptable. Expert evidence is critical to that issue, in circumstances where: (1) the Appellants odour report submitted in support of the application indicated that the proposed ERA would exceed the odour assessment criteria of 2.5 ou (odour units), 1-hour average, 99.5 th percentile at sensitive receptors; (2) the review report commissioned by the Department indicates that the odour impacts are likely to be significantly worse than indicated in the Appellant s odour report. The Department understands you intend to progress this appeal to a full hearing in circumstances where you have elected not to nominate an independent expert witness to support your case in the appeal. This correspondence serves again to remind you of the responsibilities that an Appellant holds in an appeal of this type, namely that you bear the evidentiary onus of establishing that the appeal should be upheld by the Court. Please note that if the Appellants do not furnish sufficient material, including appropriate expert evidence, to properly discharge their responsibilities in the proceeding, the Department may make an application for its costs after the hearing of the appeal. [12] Subsequently, by letter dated 17 January 2018, the solicitors for the respondent in appeal 2195 of 2017 advised the appellants, in part, as follows: In the event that your appeal is dismissed, Council instructs us to make an application to the Court for an order that you pay its costs of the appeal. Given the conclusion of the joint report of the air quality experts, Council s position is that your appeal has no prospects of success and that persisting with this appeal to a hearing in these circumstances constitutes frivolous and vexatious conduct. Council also considers that you have not provided sufficient material, including appropriate expert evidence, required to discharge the evidential onus of proof you bear to establish that the appeal should be allowed by the Court. [13] An offer to settle the matter, on the basis of the appeal being discontinued with each party bearing their own costs, was made by the respondent, but not accepted. [14] By letter dated 19 January 2018 the solicitors for the co-respondent in appeal 2195 of 2017 also advised the appellants that they bore the onus in the appeal and that their

8 clients position was that, without expert evidence, the appeal had no reasonable prospect of success. A settlement offer was also made on the basis that the appeal be dismissed with no order as to costs, but was not accepted. [15] By letter also dated 8 February 2018, the respondent in appeal 1297 of 2017 wrote to the appellants, referring to its previous correspondence of 20 September and 12 December 2017 and to the report of the experts and advised, in part, as follows: In light of the above, the Department s view is that you have not furnished sufficient material in the appeal, including appropriate expert evidence, to discharge the onus the Appellant bears of establishing that the appeal should be allowed by the Court. The Department s view is that the Appellant has no reasonable prospects of success, and continuation of the appeal amounts to frivolous or vexatious conduct. In the event the appeal is dismissed, I am instructed that the Department intends to make an application to the Court for an order that you pay its costs of the appeal. [16] The letter made an offer of settlement (on the basis that the appeal be discontinued with each party bearing their own costs) which was not accepted. [17] The appellants sought to make something of what they claimed to be an inconsistency between the attitude which the respondent in appeal 1297 of 2017 took to the subject proposal and its response to an earlier application. That however, does not establish that the appellants had an evidentiary basis to support their contention that the proposal would not, in fact, cause an odour nuisance. [18] The appellants rebuttal of the consolidated reasons for refusal contained contentions that odour modelling was limited in that it did not take account of a number of matters such as the effects of vegetative buffers, new shedding design, free range operation, better feed conversion and better management through RSPCA inspection and accreditation. Having not called any expert evidence, there was however, an absence of a substantiated evidentiary basis to establish that the matters relied upon would result in the satisfactory operation of their proposal, from the odour perspective. Further, Mr King, in his individual report for trial, which was provided to the appellants on 24 January 2018, addressed matters raised in the appellant s material, in so far as they related to the modelling. [19] The appellants proceeded to trial relying on the arguments and assertions of Mr Phipps to the effect that the site was appropriate for the proposed development notwithstanding the unanimous expert evidence to the contrary. None of his contentions were found to establish a basis for concluding that the proposal would

9 operate satisfactorily from an odour perspective or that there were sufficient grounds for approval of the proposal in the public interest. The need for the proposal was not the subject of any expert or detailed analysis and, as the reasons for judgment record, Mr Phipps acknowledged that it was a case somewhat of hopefulness of pursuing the application in the hope of market conditions returning. The appellants case was not just weak, it had no substantial evidentiary basis, flew in the face of the unanimous adverse expert evidence and had no reasonable prospects of success. It was, I am satisfied, frivolous. It is unnecessary for me to consider any other bases upon which costs might be awarded. [20] As was observed in Mudie v Gainriver Pty Ltd (No. 2) (supra) the public interest character of some matters in this court often leads to an understandable reluctance in finding proceedings brought by citizens to be frivolous or vexatious. In this case however, the proceedings were brought for the expansion of a commercial operation by those who, having abandoned reliance on the expert reports which they had commissioned and having not engaged any further experts of their choosing, decided to continue the litigation in the face of unanimous expert adverse opinions obtained by the other parties in circumstances where they had no reasonable prospects of success thereby putting the other parties, which in this instance are public bodies, to expense. They did so with notice as to their responsibility in the litigation and as to the possible consequences in terms of costs. In my view it is both open as a matter of jurisdiction and appropriate in the exercise of discretion to order the appellants to pay the costs of the appeals limited to a particular period of time. [21] The respondent to appeal 1287 of 2017 sought its costs from 19 December 2017, being one week after delivery of the joint report. In the alternative it sought its costs from 31 January 2018, being 1 week after delivery of Mr King s individual report or in the further alternative, from 9 February 2018, upon the expiry of the offer to settle. The respondent to appeal 2195 of 2017 sought its costs from 19 December 2017. 5 The co-respondent in appeal 2195 of 2017 sought its costs from 26 December, being 2 weeks after delivery of the joint report or, in the alternative from 24 January upon the expiry of the offer to settle. [22] In my view the appellants ought to pay costs from a point in time after they had a reasonable opportunity to review and consider the joint report. At that point they were aware that the unanimous view of the only experts engaged on the central issue in the cases (i.e. the potential for adverse odour impacts) was adverse to them. Whilst they did not accept the view of the experts, they, as the party with the onus, had no competing expert evidence to support their contention that the proposal would have no adverse impact. They nevertheless proceeded in the absence of any such evidence notwithstanding the warnings which at that time had been given by the respondent to the appeal 1297 of 2017 and the subsequent warnings referred to above. 5 Its application in pending proceedings sought costs from earlier dates, but in submissions costs were sought from 19 December 2017 to 15 February 2018;

10 [23] In the circumstances I will order the appellants to pay the costs of the respondent to appeal 1297 of 2017 and the respondent to appeal 2195 of 2017 for 19 December 2017 to 15 February 2018 to be assessed on the standard basis. The co-respondent to appeal 2195 of 2017 only sought costs from 26 December and so I will order the appellants to pay its costs from that date to 15 February 2018 to be assessed on the standard basis.