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Integrated Planning Act 1997 (Qld) (repealed), s 4.1.23(2)(b)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 [2013] 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:

  1. 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 significantly.
  2. 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.
  3. The applicant had been wholly unsuccessful in its application. Further, the application for declaratory relief had no reasonable prospects of success.
  4. 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.
  5. Council was entitled to its costs on the standard basis.

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