Where applicant unsuccessfully sought declarations that a
plan was generally in accordance with plans associated with a 1996
rezoning of the site - where Respondent sought costs on an
indemnity basis pursuant to the costs regime introduced by
amendments to the SPA – where applicant was wholly
unsuccessful – whether application had any reasonable
prospects of success – whether application commenced in the
commercial interests of the applicant – proper approach to
new costs regime in Court
Integrated Planning Act 1997 (Qld) (repealed), s
4.1.23(2)(b) Sustainable Planning Act 2009 (Qld), ss 457, 945
Facts: On 23 July 2013, the Court had issued a
Judgment which dismissed the applicant's application for
declarations that an amended plan was "generally in
accordance" with approved plans referred to in a rezoning
approval (MC Property Investments Pty Ltd v Sunshine Coast
Regional Council  QPELC 32).
Council subsequently applied for costs. The recently changed
costs provisions set out in s 457 of the Sustainable Planning
Act 2009 were applicable.
Council argued that it was entitled to costs because the
applicant failed completely in its application, had no reasonable
prospects of success and the application was made primarily for the
benefit of the applicant's commercial interests. In particular,
Council argued that the application had been made to save the costs
(including infrastructure charges) which would be associated with
the making of a new development application over the subject site.
Council sought costs on an indemnity basis.
Decision: The Court held, in awarding costs on
the standard basis, that:
With the new costs regime, parties (including local
authorities) would have to give serious thought to the potential
costs implications of becoming involved in proceedings in the
Court. The previous limited discretion to award costs had widened
A development application would involve expense and, if
successful, would involve infrastructure contributions, so in that
sense there may have been some commercial advantage to the
applicant in making the application. However, it was unnecessary in
this proceeding to reach a conclusion on the ground set out in
s457(2)(b) of the Sustainable Planning Act 2009.
The applicant had been wholly unsuccessful in its application.
Further, the application for declaratory relief had no reasonable
prospects of success.
Departure from the usual approach of awarding costs on a
standard basis should only occur "as and when the justice of
the case might require", or "that there should be some
special or unusual feature in the case". Council's
argument on this issue did not succeed.
Council was entitled to its costs on the standard basis.
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