Costs – application by appellant that submitter
co-respondent pay appellant's costs from a particular date
– whether co-respondent thereafter acted
"unreasonably" or raised issues not "properly
arguable" or "lacking any substance" – whether
issues raised by co-respondent were "bona fide matters of town
Facts: This was an application by the Appellant
that the First Co-Respondent by Election (Ham) pay the
Appellant's costs of and incidental to the appeal limited to
those incurred between 17 December 2013 and 4 April 2014.
The appeal was against the Brisbane City Council's refusal
of a development application for four multi-unit dwellings on land
Ham was a submitter and elected to join the appeal.
Several without prejudice conferences occurred in the second
half of 2013. Under a subsequent Order, Ham notified the parties
that the development application should be approved subject to
conditions and identified matters which should be addressed by
Council circulated draft conditions on 17 December 2013.
On 7 January 2014, the Appellant consented to Council's
conditions. On 8 January 2014, Ham proposed a number of additional
conditions. On 10 January 2014, further orders were made setting a
hearing date and identifying the remaining issues in dispute which
related to conditions concerning a construction management plan
(addressing, among other things, adverse impacts on water supply
standards) and traffic.
The Second Co-Respondent by Election (Queensland Urban
Utilities) then joined the appeal. In February 2014, Ham
participated in expert meetings, to allow the parties' experts
to understand his views about the disputed issues. A joint report
was produced, the results of which Ham accepted and the appeal was
subsequently resolved by a consent order which included different
The Appellant argued that he achieved "overall
success" in the appeal and that Ham acted unreasonably in
raising new or expanded issues and ignoring Court rules in relation
to expert evidence.
The Appellant conceded that issues raised by Ham resulted in
amendments to the draft conditions but submitted that the
amendments were only narrow.
Should the application fail, Ham sought an order that the
Appellant pay his costs of the application.
Decision: The Court held:
It was unfair to Ham to categorise the amendments to the draft
conditions in a minimalist way. Ham did succeed on some of the
issues he raised notwithstanding the absence of his own experts, or
as a result of raising them conditions were varied from the
original draft or were later added.
The issues raised by Ham were properly arguable and he did not
act unreasonably in raising them; it could not be said that they
lacked any substance. They were bona fide matters of town planning
relevance. The extent to which he succeeded on the issues raised by
him militated against the Appellant's application.
No sufficient basis had been advanced to warrant an order such
as that sought by the Appellant and his application must be
The Appellant had failed completely in his application and
costs should follow the event.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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