First Respondents - R W Squibb and Sons Pty Ltd and

Second Respondent - Gen3 Development as Trustee

TITLE OF TRIBUNAL: Resource Management and Planning Appeal Tribunal

HEARING DATE: Submissions were made and responded to in writing

CATCHWORDS: Civil Enforcement Proceedings - Costs - Hardman v Ward [2004] TASSC 74 - Section 64 (12) Land Use Planning and Approvals Act 1993

1. This application concerns civil enforcement proceedings brought pursuant to Section 64 of the Land Use Planning and Approvals Act 1993 ('Land Use Act') relating to three parcels of land at Spreyton in Tasmania. After a hearing, the Tribunal made various orders against the Respondents R W Squibb and Sons Pty Ltd and Gen3 Development as Trustee for Tasfresh Trust. Those orders restrained both respondents from carrying out landfilling, required rehabilitation and dealt with the decontamination of the site. The question of costs was left unresolved with the "usual" orders being made. On the 23rd May 2012 the Council made application for costs pursuant to Section 64 (12) of the Land Use Act. By way of reply, the then solicitors for the Respondents:

Sought an extension of time to reply to the costs application; and

Advised that "Senior Counsel [had] been briefed to provide an opinion as to the merits of an appeal against the decision" made by the Tribunal.

1. In the event, an appeal was lodged, heard by the Supreme Court and dismissed (see Gen3 Developments Pty Ltd v Devonport City Council [2013] TASSC 6). Subsequent to that judgment, the Council renewed its application for costs by letter dated 7th March 2013. The following day, the Registrar wrote to the parties in the following terms:

"I refer to Mr McElwaine's letter of the 7th March 2013. The Respondents to the costs application made by Mr McElwaine on the 23rd May 2012, are to file any submissions in response to that costs application by no later than 5.00 pm Monday, 18th March 2013."

1. No submissions have been received. The Tribunal proposes to determine the costs application being satisfied that the Respondents have had an opportunity to be heard about the issue.

1. The statutory position in relation to costs with respect to Civil Enforcement Proceedings is dealt with in Section 64 (12) of the Land Use Act. That section provides:

"(12) The Appeal Tribunal must make such orders in relation to the costs of proceedings under this section as it thinks fit and in making such orders must take into account -

(b) whether a party has raised frivolous or vexatious issues at the hearing; and

(c) whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and

(d) the capacity of the parties to meet an order for costs."

1. The provision is different, quite different, to Section 28 of the Resource Management and Planning Appeal Tribunal Act 1993 ('Appeal Tribunal Act') as it now stands, the section which commonly deals with the question of costs in matters before this Tribunal. However, Section 64 (12) is indistinguishable from the original wording of Section 28 of the Appeal Tribunal Act which was amended in response to (or if not in response to then after) the judgment in Hardman v Ward [2004] TASSC 74.

1. Hardman v Ward (supra) is binding authority for the proposition that Section 64 (12) means costs follows the event. In other words in the ordinary case (and this is an ordinary case) in the absence of conduct disentitling by a successful party (and there is none in this case) then costs should follow the event.

1. There will be an order that R W Squibb and Sons Pty Ltd and Gen3 Development as Trustee for the Tasfresh Trust are to pay the costs of the Devonport City Council of and incidental to this application in accordance with 90% of the highest scale of costs for the time being in force pursuant to the Supreme Court Rules 2000 and, if not agreed, to be assessed by the Registrar of the Appeal Tribunal.

1. That such costs are to be paid within 28 days of receipt of the bill of costs, or if such bill is disputed, within 28 days of the issuance of a certificate of taxation.