Our Alert dated 16 September 2013 examined a number of decisions made by the Planning and Environment Court under its new power to award costs as set out in section 457 of the Sustainable Planning Act 2009.
In a recent decision in Cox & Ors v Brisbane City Council & Anor (No 2)  QPEC 78, the Planning and Environment Court further analyses the exercise of discretion to award costs under section 457.
Here, partner Sarah Macoun outlines the important aspects of the Cox decision.
Key take away points
- The discretion to award costs under section 457 of the Sustainable Planning Act 2009 is an open one. The success of a party in the proceedings is a relevant consideration, but is not the only one.
- Where an applicant needs to rely on an alternative solution by reference to performance criteria, whether compliance with the performance criteria can be judged objectively may be relevant to the question of an award of costs.
- Further, the Court may consider it relevant that reasonable minds might differ as to whether performance criteria are satisfied or amenity impacts are acceptable.
- The Court will closely examine the conduct of parties during the proceeding.
The Court had given reasons dismissing a submitter appeal against the Council's approval of a development application by the co-respondent, Childhood Cancer Support Inc (a not-for-profit organisation) to facilitate a multi-unit development for special needs accommodation, on a 455m2 residential allotment.
The co-respondent was largely successful, although the Council's primary decision was varied by the imposition of additional conditions to ensure renovation of the existing dwelling, and to require additional screening, for visual character and amenity impact reasons respectively.
The successful co-respondent applied for orders that all bar one of the appellants pay its costs of and incidental to the proceeding.
The appellants cross-applied for their costs of resisting the co-respondents' costs application.
His Honour Judge Rackemann noted that the discretion under section 457 is an open one, not to be approached on the basis that there is a presumption that costs follow the event or on the basis that there is a qualified protection against an adverse costs order.
Factors said to be potentially relevant when the Court previously had a general discretion as to costs included:
- whether relevant planning issues were raised;
- whether there was a reasonable basis for parties to object to the initial application and to initiate proceedings; and
- whether supporting town planning evidence was available and/or called in support of such objections.
The co-respondent submitted that the appellants were not acting to protect their amenity but variously had commercial motivations or motivations which never became clear during the trial.
In particular, some members of the appellant group owned rental properties nearby the subject site. His Honour seemed to accept that the interest of those owning rental property could be characterised as commercial, even though they might not be commercial competitors in the conventional sense. However, in this instance where the interest was a concern for the protection of tenants' amenity, His Honour was not inclined to give the "commercial" nature of the interest of the unsuccessful litigant great weight.
In response to the co-respondent's submission that the issues raised by the appellants were not strongly arguable, His Honour found that:
- the issues raised were bona fide matters of town planning relevance;
- the proposed development was substantially at odds with acceptable solutions in the relevant planning scheme code, with the co-respondent having the onus to demonstrate the appropriateness of alternative solutions having regard to performance criteria;
- the performance criteria employed language requiring more evaluative judgment than objective specific measurement, and while the Court reached the conclusion that the relevant performance criteria were met, that was not a foregone conclusion; and
- the case required an evaluative assessment of the acceptability of amenity impacts and again, while His Honour found the impacts to be acceptable, he respected that another view was open.
Overall, His Honour found that the appellants' conduct leading up to and in the proceeding was reasonable. They engaged competent town planning consultants, solicitors and counsel, from whom they obtained advice that they had reasonable prospects of success. The issues raised were of relevance, the appeal was prosecuted reasonably expeditiously and the case presentation was focused and efficient.
This was not an instance where "the case of all of the appellants at trial was so unmeritorious that the hearing was not necessary" and it was not appropriate to make a costs order on the basis of section 457(2)(d).
Although ultimately the Court found that a number of the appellants would suffer a relatively lesser level of amenity impact, this did not lead to a costs order against them, as the case was run as a unitary case that the proposal ought not be approved having regard to amenity impacts that were unreasonable for at least one of the appellants.
The Court ordered that each party bear their own costs of the proceeding.
Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.