Planning and environment – costs – application for costs by successful applicant/Co-Respondent against unsuccessful objector/Appellants – where issues related to compliance with the planning scheme and the acceptability of amenity impacts – nature of the parties' interests – whether ownership of adjoining rental property, the amenity of which may be affected, was a relevant commercial interest – weight to be given to that in circumstances – relative strength/weakness of Appellants' case – where Appellants had taken advice as to prospects – where conduct of Appellants was reasonable – where not all Appellants likely to suffer significant amenity impacts but a respectable unitary case was run – costs of unsuccessful costs application
Sustainable Planning Act 2009, s 457
Facts: This matter related to a submitter appeal against Council's decision to approve a development application for a multi-unit development for special needs accommodation, on a residential allotment currently improved with a single detached character house.
The appeal was originally heard over two days in August 2013. On 6 September 2013 the Court delivered its judgment and made orders that the appeal be dismissed. The Co-Respondent developer was substantially successful. However, the Court did impose additional conditions on the approval of the development application, including requiring additional screening and ensuring renovation of the existing dwelling would take into account the likely amenity impact of the proposal on the adjoining property at 8 Hetherington Street.
The Co-Respondent subsequently filed an application seeking an order that the Appellants (bar one) pay its costs of and incidental to the appeal.
The subject appeal was lodged in 2013 and was subject to the new costs provisions under s 457 of the Sustainable Planning Act 2009 (SPA). Under s 457(1), the Court had discretion to awards the costs of the proceeding.
The Appellants against whom costs were sought were:
- Ms Lambert, who lived with her husband and children at 10 Hetherington Street. Ms Lambert gave evidence at the hearing by way of an affidavit which expressed concerns about matters relevant to the town planning issues in the case;
- the Critendens, who lived at 1 Hetherington Street. Mrs Crittenden gave evidence by an affidavit which set out concerns including the alleged overdevelopment of the site and associated amenity issues.
- Mr Escott, who was the owner and a former resident of 3 Hetherington Street and did not give evidence at the hearing;
- the Carruthers, who lived at 4/2 Hetherington Street and did not give evidence at the hearing; and
- Mr and Mrs Cox. Mrs Cox had an interest in all but two of the units in the complex immediately north of the subject site. Mrs Cox gave evidence by affidavit, which raised concerns about the impact of the proposal on the privacy and amenity of the units that would overlook the new development.
Costs were not sought against Ms Ernst, the adjoining neighbour at 8 Hetherington Street, as the Co-Respondent accepted her interest was obvious.
The Co-Respondent argued that:
- the Appellants against whom an order was sought were not acting to protect their amenity but had commercial motivations or motivations which never became clear during the trial;
- the Co-Respondent was a charity and that its costs must come from donations or from the limited resources it received from government; and
- the issues raised by the appellants were not strongly arguable.
The Appellants cross-appealed for their costs of resisting the costs application, submitting that the genuine interest of each of the Appellants was readily ascertainable.
Decision: The Court held, in ordering each party to bear its own costs, that:
- The Co-Respondent's success was a relevant consideration but not the only one. The interests and conduct of the parties, both leading up to and in the proceeding, were among the matters that may also be considered.
- Ms Lambert's interest was obvious. The amenity enjoyed from that property would be affected to some degree, because residents of that property presently look out across the rear of the Ernst house to the backyard of the subject site, where the multi-unit development was to occur.
- It was accepted that the interest of those who own rental property could be described as commercial for the purposes of s 457(2)(b) of SPA, even though they might not be commercial competitors in the conventional sense. However, in a case where the interest was an understandable concern for the protection of amenity for the residents of a rental property in close proximity to the proposed development, the Court was not inclined to give the "commercial" nature of the interests of the unsuccessful litigant great weight.
- The Co-Respondent's status as a charity should not have a substantial bearing on the exercise of the discretion.
- The issues raised at the hearing were bona fide matters of town planning relevance. Insofar as compliance with the planning scheme was concerned, the relevant performance criteria employed language which placed more reliance on evaluative judgment than objective specific measurement. Those were matters upon which reasonable minds could differ. White the Court ultimately concluded that the performance criteria were met, that was not a foregone conclusion.
- Likewise, while the Court found the amenity impacts to be acceptable, it was accepted that another view was open.
- The level of impact on an individual Appellant, considered in isolation, might have been relatively modest, but the Co-Respondent was not faced with numerous discrete cases. The case was run as a unitary case which was reasonably arguable. That the level of potential direct impact on each Appellant was not equal to that on the Ernst residence did not lead to a conclusion that the Appellants ought not to have participated in the appeal or that there should be differential costs orders.
- The Appellants, while unsuccessful, had a legitimate interest in the subject matter of the proceeding, raised bona fide matters of town planning relevance, were supported by the professional opinions of a qualified and experienced town planner, acted reasonably both in the lead up to and in the proceeding, including by retaining appropriate professional assistance and taking advice as to prospects before proceeding. Each party should bear its own costs.
- The Co-Respondent had an arguable basis for seeking the favourable exercise of the discretion given its success in the litigation. Each party should bear its own costs of the application.
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