Court denies council's application for costs after successful Gillion fight

COURT WIN: Tamborine Mountain community representatives hoped council would recoup costs after the protracted legal fight over ground water extraction.
COURT WIN: Tamborine Mountain community representatives hoped council would recoup costs after the protracted legal fight over ground water extraction.

SCENIC Rim Regional Council has unsuccessfully applied for court costs after a failed appeal by a Tamborine Mountain bottled water company.

The appeal challenged a 2011 decision by council to disallow the commercial extraction of groundwater from a property on Power Parade. The decision was upheld in court on October 5 last year and in November council sought payment of legal costs from Gillion Pty Ltd.

Scenic Rim mayor Greg Christensen said council had believed it appropriate to apply for costs after Gillion's unsuccessful appeal.

The Tamborine Mountain Progress Association was one of the co-respondents in the case against Gillion and president Jeanette Lockey said the decision was a disappointment.

"With each successive appeal and having lost the first two, Gillion's chances of success were greatly diminished," she said.

"Council uses ratepayers' monies. On top of this, ratepayers themselves chipped in over $300,000 during the first appeal and supported council to the hilt during appeals numbers two and three.

"Hundreds of ratepayers elected to stand as co-respondents during the trials in the Planning and Environment Court."

Ms Lockey said Tamborine Mountain had no reticulated water so "conserving and protecting this vital community resource was of top priority" for council.

"To protect its ratepayers, council has therefore had to bear court costs three times over," she said.

"The decade long proceedings has had a negative effect on the whole community, which regularly states one of its main concerns is water.

"This is even more deeply felt now during this time of drought when so many households are running out of water and the waiting list for costly supply increases.

"The Save our Water group is gaining momentum to protect the mountain's vital supply with more activity cranking up."

Gillion argued in their appeal that there was an economic need to provide such good quality water to the growing bottled water industry and that the people of Tamborine Mountain would benefit from having a reliable source of water "right on their doorstep".

They also said they would make the water available for firefighters and provide a reliable source of water for charitable purposes during natural emergencies.

Although the appeal was unsuccessful, Judge Dean Morzone QC found that Gillion had a legitimate commercial interest in testing the council's decision.

He concluded that Gillian acted reasonably before and during the conduct of the appeal and did not commence the appeal for an improper purpose.

Judge Morzone found the appeal proceeded on a sufficiently different basis to the previous appeal, with improved changes to strengthen the case.

"I do not accept that the appellant commenced and participated in the proceeding without reasonable prospects of success informed by the previous appeal and the common approach to the issues," he said.

"The proceeding clearly involved a matter of public interest of water supply in a small community purposely planned without reticulated water supply for private, business, and emergency uses.

"The appellant sought to exploit its personal right or interest to supply commercial water, as well as improve the supply to the local community, by tapping the abundant underground resources."

Judge Morzone said the proposal did not have any undue negative impacts or detrimental effects on the community.

"The appellant was unsuccessful in the proceeding," he said.

"No costs were unduly incurred by the introduction of any new material, legislative noncompliance, or procedural default.

"Having weighed these matters, each party ought bear their own costs of the proceeding, and I will dismiss the council's application for costs," he said.

Scenic Rim mayor Greg Christensen said council accepted the court's findings.

"As previously communicated, council was successful in upholding its decision to refuse the Gillion water extraction development application that was the subject of this appeal," he said.

"On behalf of the community, council believed it was appropriate to seek to recover some of the costs associated with defending its position.

"As outlined in the judgement of the court, the court has determined that each party should carry its own costs in this matter.

"Council respects the role of the court and accepts this decision."