Planning and environment – application for costs of withdrawn application in pending proceeding – whether prayer for declaratory relief could be sought in an application in pending proceeding in an appeal – whether application frivolous or vexatious – whether party failed to discharge responsibilities
Sustainable Planning Act 2009, ss 456, 457(2)(i), 457(2)(a),
Planning and Environment Court Rules 2010, r 4
Facts: This was an application by the Co-Respondent developer for costs against the submitter Appellants in relation to an Application in Pending Proceeding filed on 13 May 2013 but withdrawn at the hearing of the application on 21 May 2013.
The appeal was against Council's approval of a development application to facilitate the redevelopment of an integrated care-based village composed of residential aged – care accommodation and independent assisted – living units on land at Woolloongabba.
The Appellants' central allegations in the appeal were that the proposal represented an overdevelopment of the site with likely resultant adverse amenity consequences and was not respectful of heritage issues.
The appeal progressed towards a hearing pursuant to directions. The hearing was due to take place in the June sittings, but on 16 May 2013, the matter was removed from the June sittings and the Application in Pending Proceeding was set down for hearing on 21 May 2013.
The Application in Pending Proceeding sought, among other things, a declaration that the approval of the development application was invalid and of no legal effect and an order that it be set aside. In support of the declaration of invalidity, the Appellants argued that notification of the demolition component of the development ought to have taken place and that in assessing and deciding the application Council had reached a decision which was unreasonable in a Wednesbury sense.
The Co-Respondent and the Respondent invited the Appellants to desist from pursuing the application on a number of occasions. The primary arguments advanced by the Co-Respondent and the Respondent against the Application were that the application was improperly brought as an Application in Pending Proceeding and was futile because if Council's decision was invalid it would be open to the Co-Respondent to immediately commence an appeal against a deemed refusal.
The Application in Pending Proceeding was subsequently discontinued at the hearing of the application. The merits appeal proceeded to a hearing in July 2013.
The Co-respondent sought costs associated with the Application in Pending Proceeding on the basis that the Appellants had failed to properly discharge their responsibility to act expeditiously in the proceeding (s. 457(2)(i) of the Sustainable Planning Act 2009) and that the application was frivolous and vexatious (s. 457(2)(a) of the Sustainable Planning Act 2009).
The three reasons relied upon by the Co-Respondent as justifying a finding that the Application was frivolous and / or vexatious were:
- the public notification point was completely without merit;
- the Appellants could not have established that any error rendered the Council's decision invalid; and
- the relief would have been refused in any event, on discretionary grounds, having regard to its lack of futility.
Decision: The Court held, in dismissing the application for costs:
- In relation to the public notification point, it did not appear to have much merit. However, even if it were so bad as to be unarguable, it would not render the application as a whole frivolous or vexatious.
- The Appellant's point in relation to potential error in Council's decision was not so unarguable as to render the Application doomed. Stevenson Group Pty Ltd v Nunn & Ors  QCA 351 referred to.
- The apparent absence of practical utility of the relief sought, in the sense that it would likely have simply led to another merits appeal, did not give rise to a responsibility on the part of the Appellants to desist from filing or pursuing an Application to agitate the issues.
- The frivolous and / or vexatious ground was not made out. Mudie v Gainriver Pty Ltd (No 2)  2 Qd R 271; Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council  QCA 15 referred to.
- It was evident that agitation of the issues relied upon by the Appellants and any decision to grant the relief sought would have delayed the hearing of the merits of the development application. It did not follow however, that the Appellants had an obligation not to attempt to agitate available and arguable points of law. Their was no lack of expedition once the application was filed and the five week delay beforehand did not amount to a breach of the duty to act expeditiously.
- Neither of the two suggested bases for enlivening the costs jurisdiction had been made out. However, the result may well have been different under the new costs regime.
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