Another proposed motocross track at Adare? Rumour or fact?

 There is a rumour going around that someone is proposing a major motocross track at Adare.  No real facts, but lots of "detail" - some of which is contradictory and none of which can be confirmed at present.

One suggestion is that it involves a currently illegal motocross track that is seeking Council approval.  Location uncertain.

Colby Steer still has the (unapproved) motocross track on his land at Adare that he created around 2014.

Do you have any information about an application to Council for approval of a motocross track in the Lockyer Valley Region?

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.

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).

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.