Australia: Successful party ordered to bear own costs: a reminder that winners are not always grinners

In brief - Court exercised its discretion under section 457 of SPA to order that each party bear their own costs

In Cox & Ors v Brisbane City Council and Anor (No2) [2013] QPEC 78, an application for costs by Childhood Cancer Support Inc has resulted in the Queensland Planning and Environment Court exercising the discretion provided by the new costs provisions of the Sustainable Planning Act 2009 (QLD) by ordering that each party bear its own costs.

Unsuccessful appeal against development approval was nevertheless based on legitimate interests

Childhood Cancer Support Inc sought a costs order following an unsuccessful submitter appeal by local residents against the council's approval of a development application for a multi-unit development in Herston, Brisbane. The concerns of the local residents included the alleged over-development of the site and associated amenity and privacy issues. While Childhood Cancer Support Inc successfully resisted the appeal, additional conditions were imposed by the court to address visual and amenity impacts of the proposed development.

Section 457 of the Sustainable Planning Act 2009 (Qld), to which the appeal was subject, provides the court with an open discretion to determine whether to award costs. This discretion must be exercised judicially and have regard to relevant circumstances, including the parties' relative success and their interests and conduct, both leading up to and in the proceeding.

The court considered the local residents had a legitimate interest in the matter and acted reasonably both leading up to and in the proceeding. Whilst Childhood Cancer Support Inc was successful, on balance, the court exercised the discretion by ordering that each party bear its own costs.

Local residents' concern for the protection of amenity given greater weight than claims to commercial rental interests

Childhood Cancer Support Inc submitted that the interest of those local residents who owned rental properties could properly be described as commercial for the purpose of section 457(2)(b) of the Sustainable Planning Act 2009, notwithstanding that they might not be commercial competitors in the conventional sense.

The court noted that the weight which would be placed on the commercial interests of the parties, in exercising its discretion, would vary based on the circumstances. In this instance, the court observed that those residents' interest was an understandable concern for the protection of amenity and as such, was not inclined to give great weight to the commercial nature of the interest of those residents.

Charity status had no substantial bearing on court's exercise of discretion over costs

Childhood Cancer Support Inc contended that as it was a charity, the costs it bore from the appeal were from donations or from the limited resources received from government. The court found it difficult to see why it would have a substantial bearing on the exercise of the court's discretion, which Childhood Cancer Support Inc acknowledged.

Court rejected claim that the local residents' case was unmeritorious

Childhood Cancer Support Inc submitted that the issues raised by the local residents, which focussed on compliance with the planning scheme and the acceptability of amenity issues were not strongly arguable.

While the court ultimately concluded that the relevant performance criteria under the relevant codes in the planning scheme were met, the court noted that it was not a foregone conclusion, given that the proposed development was substantially at odds with the acceptable solutions in the relevant codes and the compliance of the relevant performance criteria was assessed based on evaluative judgment, rather than objective specific measurement.

Similarly, the acceptability of amenity issues required an evaluative assessment, which was open to another view, despite the court finding the amenity impacts to be acceptable. The court therefore did not accept the submission made by Childhood Cancer Support Inc that "the case of all the appellants at trial was so unmeritorious that the hearing was not necessary" and did not consider it to be appropriate to make a costs order on the basis of section 457(2)(d) of the Sustainable Planning Act 2009.

Court did not consider the relatively lesser level of the likely impact on some of the residents should necessarily lead to a costs order against them

In support of its costs application, Childhood Cancer Support Inc submitted that there were no findings that any of the residents, with one exception, would be significantly impacted by the proposed development.

The court accepted that the potential impacts on other residents were of a markedly lower level than for the excepted property. However, the court did not consider that the relatively lesser level of the likely impact on other residents would necessarily lead to a costs order against them.

This was further supported by the court's findings that the residents had a legitimate interest in the matters of concern and had acted reasonably and that the case was reasonably arguable.

Order for parties to bear own costs on the basis of legitimate interest despite rejection of appeal against development approval

The court acknowledged that Childhood Cancer Support Inc was ultimately successful in resisting the appeal. However, on balance, the court believed that it was appropriate for each party to bear their own costs, particularly having regard to the interests and conduct of the local residents, namely:

  • they had a legitimate interest in the matters of concern;
  • they raised bona fide matters of town planning evidence, which were supported by the professional opinions of a qualified and experienced town planner;
  • they acted reasonably both leading up to and in the proceeding;
  • they ran a unitary and respectable case.

Similarly, the court dismissed the application by the local residents for their costs of resisting the costs application made by Childhood Cancer Support Inc, on the grounds that Childhood Cancer Support Inc had an arguable basis for seeking the favourable exercise of the court's discretion since it was successful in the appeal.

The court therefore ordered that each party bear their own costs of the proceeding, which included their costs associated with the application for costs.

Ronald Yuen Dimitri Simianakis
Planning and environment
CBP Lawyers

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