Monday, 27 February 2017

Costs Judgement - Drywound to pay part of other parties' costs for the Appeal

The Planning and Environment Court today (28 February 2017) issued the judgement on the parties' applications for costs in relation to the Drywound Pty Ltd Appeal against the Council's decision in May 2015 to refuse the Drywound Application for a motocross facility in the Adare/Vinegar Hill area.

You can find a copy of the judgement here (until such time as it appears on the eCourts website, when a link to it will be posted here).

The summary of the judgement is given below.  The "appellant" is Drywound Pty Ltd (Colby Steer's company); the "respondent" is the Lockyer Valley Regional Council; the "co-respondents" are the group of individual community members who had legal representation and engaged expert witnesses (i.e. the group supported by Lockyer Community Action Inc.) - Keep Lockyer Rural Inc. is not included because they did not have legal representation or engage expert witnesses.

The summary:

"For the reasons given:
(i) the appellant's application for costs is dismissed;
(ii)  the appellant is to pay the respondent's costs of the appellant's costs application, assessed on a standard basis;
(iii) the appellant is to pay the represented co-respondents by election's costs of the proceeding from 14 December 2016, assessed on the standard basis;
(iv) the appellant is to pay the respondent's costs of the proceeding:
      A. from 26 September 2016 to 13 December 2016 on the standard basis; and
      B. from 14 December 2016 on an indemnity basis; and
(v) the respondent's application for costs is otherwise dismissed."

Of course there is a difference between a direction from the court that Drywound Pty Ltd should pay the costs of a party to the Appeal and those costs actually being paid.

See the full judgement for a reasoned argument of how these costs were arrived at.  There is an explanation below of what constitutes "standard basis" and "indemnity basis" for calculating costs.

Accessing Other Documents Filed During the Appeal

If you want to access other documents that were filed during the Appeal you can go to the eCourts website, scroll down to Party Details and type "Drywound Pty Ltd" (without the " ") in the Last/Company Name field.  Hit Return or click the "search" button at the bottom of the page.  Then click on "View file details" and scroll down to Documents.

You can download any of the pdf files under the heading "Pages" - unfortunately the Document Type and Document Description aren't very helpful in indicating what the contents of a file will be.

Costs in Legal Proceedings

 Costs in legal proceedings can be assessed in two different ways: standard basis and indemnity basis.  The following explanation is from Costs Orders in Queensland Courts.

Standard basis of assessment

Unless otherwise specified, costs are assessed on a standard basis. This means the amount of costs to be paid are calculated by taking into account only those costs actually incurred by the party which were necessary or proper for the attainment of justice or for enforcement or defence of rights (rule 702, UCPR). The costs assessor must apply the court's scales of costs which are set out in the UCPR.

As a result, standard costs only compensate the successful party for part of the fees (around 60-75%) they pay to their solicitor. If the solicitor has charged more for work done than that specified in the scale of costs, or if there is an additional amount to be paid to the solicitor under the retainer, then this will not be included in an assessment of costs on a standard basis.

Indemnity basis of assessment

If costs are awarded on an indemnity basis, then costs are calculated by taking into account all costs reasonably incurred and of a reasonable amount, having regard to:
(a) The court's scale of fees; (b) Any costs agreement between the party to whom the costs are payable and the party's solicitor; and (c) Charges ordinarily payable by a client to a solicitor for the work (rule 703, UCPR).

The only ground for disallowing items of indemnity costs is if they are of an unreasonable amount or were unreasonably incurred.

Costs may be awarded on an indemnity basis where the court finds that the court proceeding had no legal basis. If the court awards costs to the successful party on an indemnity basis, the unsuccessful party may need to pay up to 90-95% of the fees and costs actually incurred by the successful party.

Thursday, 26 January 2017

What kind of track would it have been anyway?

One of the strange features of the Drywound Appeal against the Lockyer Valley Regional Council's decision to refuse the application for a motocross facility at Adare was the number of proposed track designs that were brought up during the Appeal process - 10 in all, between mid-April and mid-December 2016.  Over one period of 170 days there was a new track layout every 19 days on average.

Colby Steer, the sole Director of Drywound, put quite a bit of emphasis on his expertise in motocross track design and construction at one point in the Appeal.

But why so many track designs?  That's a bit hard to understand.  Clearly there was a problem with getting the noise levels at nearby houses and the Lockyer National Park down to something vaguely acceptable.  But there was no consistent incremental improvement in the noise characteristics of the designs put forward, despite Colby Steer's self-proclaimed expertise as a track designer.

Was it "gaming" the Appeal process to confuse the other parties' experts, or to draw it out and make it more expensive for the Council and the Co-respondents? We will never know.  If it was this, it backfired because it was Colby Steer who ran out of money in the end (see here).

Did all this revision of track designs produce a better track for riders?  You be the judge.

This was the last track design - put to the Court in early December 2016
There are two significant features of this design.  One is the three dark green features with the black lines in their middles.  The other is the seven sections of the track outlined in red.

The dark green features are three earth bunds, 5m high and 12m wide at the base, with a 3m high noise barrier on top.  That makes a total barrier height of 8m, with three of these barriers having a total length of 575m.

These massive barriers were introduced about a year into the Appeal process when it became clear that getting noise levels down to anything like acceptable was going to be very difficult.

Can you imagine what it would be like to be a spectator watching the bikes on this track - or a parent of a young rider, trying to keep an anxious eye on the kid as he/she goes around the track.  From most positions, around half of the track would be obscured by the middle 8m high barrier.

Or as a rider you come belting around that tight left-hand corner at the end of the bund in the south-western part of the track - but you can't get a view around the end of the bund to see if anyone has come off on the track up ahead.  Adds a new element to extreme sport.

What about those red sections of track?

They are also about noise reduction.  As everyone knows, when bikes go fast they make more noise, and throttle use (opening it all the way out) also makes more noise.  Two characteristics of a good ride, but they're noisy.  Track in the red sections has been subjected to "acoustic treatments" by eliminating jumps and introducing obstacles designed to reduce speed and throttle use.  Nearly 20% (1/5) of the total track length has had this treatment.

Not exactly an exciting ride, and I doubt there's another adult track in South-east Queensland that has this extent of fun-spoiling "acoustic treatment".

One other important limitation that can't be seen in this track design is the restrictions that would have to be placed on changes to the track layout. This would clearly matter to riders - surveys done in Victoria indicate that regular modifications to track layout are one of the features that keeps riders coming back to a track.

However, because of the emphasis on getting noise at nearby dwellings and the National Park down to acceptable levels, and the recognition that track direction and the positions of jumps have an effect on noise levels, if the motocross facility had been permitted at Adare there would have had to be conditions requiring the track layout not to be modified.  Boring!!

Maybe if the operation hadn't been refused permission it would soon have gone broke once riders got bored with the track.  And that's without factoring in the impact of the recently opened Willowbank MX track in the Ispwich Motorsports Precinct.

Wednesday, 25 January 2017

It's over - there will be NO MOTOCROSS @ ADARE!!

Here’s some great news.

Last week, as we were preparing for a resumption of the final Trial Hearing on the motocross appeal, Drywound Pty Ltd's solicitor filed an application with the court to be taken off the record as its solicitor because he (and the barristers) were owed a considerable amount of money and the developer had not been returning his calls or emails for over a month (this was accompanied by a 63 page affidavit detailing the Drywound's debts to its lawyers and experts - see post here).

Late on Friday Colby Steer (sole Director of Drywound Pty Ltd) sent the parties to the appeal copies of a “letter of demand” that he had sent to the Council for payment of $501,057 which he claimed to have spent on legal and professional costs, arguing that the Council had intially expressed “tremendous support and encouragement” at the initial meeting in 2014, but had been putting difficulties in his way since then.

The tone and content of his letter suggest that he has not adequately understood the nature of the Development Application or Planning and Environment Court Appeal processes.  However, in fairness, it is also quite possibly a factor contributing to his current problems that, as an "outsider" in the Lockyer Valley, he might not have recognised in time that any support, encouragement and assurances he had received from the then Mayor of the LVR Council would not necessarily outlast his untimely demise.

On the morning of Monday 23rd of January Mr Steer was in the Planning and Environment Court (self-represented) when it met to resume the Trial Hearing.  He advised the Judge that he wanted to withdraw from the Appeal and had no intention of pursuing the Trial Hearing.  On hearing this, the Judge dismissed his Appeal against the Council’s decision to refuse the application for a material change of use to allow the establishment of a motocross facility on the land in Adare Road.

It's over.

The Council’s decision to refuse the Development Application stands.

The voices of the 232 objecting submitters to the Development Application have prevailed.

This was always an inappropriate development for the proposed location, and that would have been recognised in the Trail Hearing had it gone ahead.  Drywound's withdrawal has saved the community from yet more unnecessary expense in fighting an appeal that should not have been launched in the first place.

Tuesday, 17 January 2017

Drywound's Solicitor files an application for leave to withdraw

On Monday 16 January Drywound's solicitor filed an Application in the Planning and Environment Court seeking "leave to withdraw as solicitors on the record for the Appellant".

Which in simple english means that the solicitor submitting the request wants the Court to take his name off the Court records as the solicitor for Drywound Pty Ltd (the company which filed the Development Application for a motocross facility at Adare in the Lockyer Valley, and of which Colby Steer is the Director and sole shareholder).

The Application was accompanied by an Affidavit explaining the circumstances leading up to this situation.

You can download the Solicitor's Application to not be listed as representing Drywound here:  http://apps.courts.qld.gov.au/esearching/eDoc.aspx?Location=BRISB&Court=DISTR&Filenumber=2652%2f15&edocsno=71110

and the Affidavit with the background to the Application here:  http://apps.courts.qld.gov.au/esearching/eDoc.aspx?Location=BRISB&Court=DISTR&Filenumber=2652%2f15&edocsno=71111

Page 16 of the above Affidavit (i.e. the 16th page of the total pdf document, not a page numbered 16) details the unpaid fees to lawyers and experts at the time of preparation of the Affidavit owed by Drywound Pty Ltd (Colby Steer's company).

Sunday, 6 November 2016

Helmets Don't Prevent Kids' Motocross Concussions

Helmets Don't Prevent Kids' Motocross Concussions - that's the headline of a post on the Medlineplus.gov website two weeks ago which reported the preliminary results of a long-term study.

A team of investigators tracked 35 boys ages 8 to 17 who competed in motocross events on tracks sanctioned by the American Motorcycle Association over a 10 year period to 2014.

All routinely wore mandated safety equipment: helmets, shatterproof goggles, protective boots and pants, and long-sleeve jerseys, the researchers said.

More than 85 percent (30 riders) were injured while competing or practising, and nearly half suffered concussion despite the use of helmets.  One of the boys died from his injuries.

Nearly three-quarters suffered some orthopedic injury. Among 32 fractures, broken legs were most common, but broken arms, ankles and collarbones were reported, too.

Lower extremity fracture risk was found to be twice as high as upper extremity risk, and surgery was performed in more than 80 percent of the lower fracture cases, the study revealed.

 The study concluded that competitive motocross athletes younger than 18 years suffer serious, potentially life-threatening injuries despite the required use of protective safety equipment in AMA sanctioned events. Injuries were more common during competition (30) than during practice (5).

Go here and search on "motocross" to find a detailed summary of the study as presented on Sunday 23 October at the annual meeting of the American Academy of Pediatrics in San Francisco.

Saturday, 30 July 2016

Addressing misconceptions about the approval and appeal process

There is currently a lot of talk on the closed Facebook page group Memories of Gatton about the proposed motocross facility and the opposition to it.  Unfortunately a lot of what is being said is based on misunderstandings or misinformation.

I think it's time to address some of the claims being made.

Only six people are opposing the motocross facility

232 people formally opposed the proposal during the Development Application process.

The advertising of the proposal in late November 2014 led to 232 objecting submissions being lodged with the Lockyer Valley Regional Council by the cut-off date in mid-December.  This was an incredible response, given that because of the way it was advertised the proposal did not begin to be known by more than the immediate neighbours until there were only 10 days of the public notification process remaining.  Had the process gone on longer there would have been many more objecting submissions.

Those objecting submissions will be considered by the Judge of the Planning and Environment Court who will decide whether or not the appeal should be allowed.

Only two supporting submissions were made.

When the developer (technically Drywound Pty Ltd, but it's sole shareholder is Colby Steer) lodged an Appeal in the Planning and Environment Court against the Council's unanimous refusal of the development application, the Lockyer Valley Regional Council was the "Respondent" i.e. they formally opposed the appeal which sought to overturn their decision.

Six members of the community nominated to become "Co-respondents" to the appeal.  That is, they agreed to respond alongside the Council, to oppose the appeal.  In effect, they stand as the representatives of the much larger group of those in the community opposing the motocross facility.

This is a particularly brave stance for ordinary people like retirees, farmers, and small business owners, because in 2012 the LNP State government overturned a long-standing principle that people who stand up for their rights in town planning appeals should only have to pay their own costs.  The LNP changed the law so that there is the potential for co-respondents to be required to pay the costs of the appellant.  Had this not been the case there would likely have been several tens of co-respondents, as in the Bella Creek moto park appeal in the Gympie Regional Council area some years ago, prior to the LNP changes.  By the way, like many motocross proposals these days the Bella Creek proposal did not go ahead.

In addition, a local community group also elected to become a Co-respondent in the appeal.

None of this changes the fact that the main respondent to the appeal is the Council, acting on behalf of the Lockyer Valley community, because they made a decision to refuse the application based on what was in the best interests of the whole community, not just the wishes of a single-interest group.

"The six complainants have hardly spent a dime..."

The six co-respondents have to raise the money to pay their solicitor, barrister, noise expert, koala ecology expert, and town planning expert.  As you would expect, this is an expensive proposition.

Luckily, because there is so much opposition to the proposed motocross facility, the community has been willing to assist with the costs and a large number of people (including the co-respondents) have contributed several tens of thousands of dollars.

As the number of objecting submissions showed, the proposal is opposed by a community, not by six individuals.

The motocross proposal comes from a "locally owned and operated business"

The proposal comes from a company with only one shareholder.

That company is not registered to an address in the Lockyer Valley Regional Council area.

The sole shareholder does not live in the Lockyer Valley Region and does not own any operating business in the area.

Those opposing the motocross proposal are putting a financial burden on the community by way of Council's legal costs

Once someone lodges an appeal, the Council has no option but to oppose an appeal against their properly made decision.

That the Council took nearly six months to assess and evaluate the proposal shows that they did not make their decision in haste or carelessly.  Further, the Council's decision was unanimous.  It wasn't a "near thing" - every Councillor was opposed to the proposal.  Not only that, the Council's planning staff, who submitted their report to the Council meeting where the decision was made, recommended, for a wide variety of reasons, that the development not be approved.

Thus, the situation is this:
  • a record number of objecting submissions were received by the Council; 
  • the Council planning staff recommended for a range of reasons that the development not be approved; and 
  • every Councillor voted to refuse the development application;
 and in the face of this, the developer (Colby Steer) still decided to lodge an appeal!

It's clearly not those opposing the proposal who have been the cause of the Council's expenses in fighting this appeal.

People don't understand why there is opposition to the motocross proposal

Colby Steer has posted the Council's grounds for continuing to oppose the appeal on the Memories of Gatton website.  Admittedly those grounds are framed in difficult to understand town planning terms, but that is because the application was made under the Gatton Planning Scheme which uses the same language.

To get a more digestible version of the reasons you could go to the minutes of the Council meeting where the application was refused and read the staff report which recommended against approval.

You could also have gone into the Council office any time in the nearly six months when the application was under consideration and had a look at the submissions from the 232 people who don't want this development to go ahead.

Or to get a feel for the reality of motocross impacts you could have a look at some of the heartfelt comments of people who have had to live with motocross operations in their area.  There's more here  and here.

A lot of these impacts on people living with motocross activities have to do with noise.  It often isn't until people have to live with motocross noise that they realise that the problem isn't just the loudness.  Check this out for an overview of the health impacts of motocross noise.





Progress with the Adare motocross facility Appeal

It's more than one year since the Lockyer Valley Regional Councillors unanimously refused permission for the motocross training facility at Adare, citing a range of grounds based on non-compliance with the Gatton Planning Scheme.

This followed a public notification process in which 232 objecting submissions were received and only 2 supporting submissions.

On 3 July 2015 the applicant (Drywound Pty Ltd - sole shareholder Colby Steer) lodged an appeal in the Planning and Environment Court.  From that date, under the Court rules he had six weeks to progress the appeal.  In fact it was around four months before he took any further action.  That delay was a foretaste of the way he was to conduct the appeal until now.

I'll skip the intervening stages until on 3 March 2016 the Judge in the Planning and Environment Court issued a Court Order setting out the substantive stages in the appeal process, leading to a Court Hearing in September this year if no agreement on a mutually acceptable outcome had been found before that.

First there was a Mediation Meeting in mid-April to see whether was any commonly agreed outcome possible at that stage.  Unsurprisingly, there wasn't.

The next two stages in the process were to be the nomination of experts by the parties in relevant specialist fields.  This was to be done by 29 April.  By that date the Council had nominated experts in the fields of noise, ecology and town planning, and the group of six Co-respondents who are being assisted with fundraising by Lockyer Community Action Inc. had nominated experts in the fields of noise, koala ecology and town planning.

Drywound had not nominated any experts by the deadline.

The next deadline was to be meetings of the experts in the various fields, which were to be convened by 13 May (apart from town planning, which group meets later and has access to the reports of the other groups).

As of 13 May, Drywound had still not nominated any experts, so the expert group meetings had not been able to be held.

For a man who has apparently been so keen to get his motocross facility up and running, Colby Steer has been remarkably casual about pursuing the appeal process.

In the 49 weeks from when Colby Steer lodged his appeal until 12 June this year, more than 34 weeks had been wasted as a result of his non-compliance with deadlines set in Court Orders and the Planning and Environment Court's Practice Directions.

That amounts to 70% of the elapsed time.  Keen to get the track operational?  It doesn't look like it.

In commenting on his review of the progress of the Appeal the Judge commented that if an application were to be made for dismissal of the Appeal on the grounds of further delays, he would be inclined to look favourably on it.

The Appeal is now in the stage of Joint Expert Group meetings where the experts nominated by the various parties meet in "subject" groups (e.g. noise, ecology, town planning) to determine what they are able to agree on about the proposed development and where their areas of disagreement lie.