Robertson DCJ – 31 July 2014
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Unsuccessful submitter appeal – where appeal unsuccessful primarily on the basis of the rejection of the town planning opinion evidence of the planner relied upon by appellants
Costs – where successful developer applies for costs under s 457 of the SPA – where developer wholly successful in its appeal, primarily because of the Court's construction of the Planning Scheme – where developer alleged submitter commenced and / or participated in the appeal for an improper purpose – where town planning expert had failed to disclose that his wife was an adverse submitter – where one of the appellants held property with the solicitor for all appellants and a commercial interest in the incorporated legal practice – whether the proceeding affected a matter of public interest – whether the appellants had acted unreasonably – where application made against (2) submitters who had filed a Notice of Discontinuance well before the hearing which had the effect of staying the effect of the Notice
Facts: This was an application for costs arising out of an unsuccessful submitter appeal against Brisbane City Council's approval of a development application for mixed use development on the site of the Chalk Hotel.
Costs were sought by the developer (Trentham) against submitters Mr Friend and Mr and Mrs Manning. The appeal was commenced on 25 January 2013 and as such the parties were subject to the new costs regime in the Planning and Environment Court.
The disputed issues in the appeal were predicated on essentially the different opinions of the expert town planners called by the parties, particularly in relation to the critical planning instrument being the Woolloongabba Centre Neighbourhood Plan, which had several drafting anomalies. At the hearing, Trentham successfully rebutted all of the many allegations of conflict asserted by the Appellants, except in one minor aspect .
Trentham's application for costs was based on several of the matters identified in s. 457(2) of the (SPA), namely the relative success of the parties, whether the appeal was alleged for an improper purpose, whether the submitters had reasonable prospects of success, whether there was any matter of public interest in the appeal, whether the submitters had acted unreasonably in the conduct of the proceeding and whether there had been any non-compliance with procedural requirements of the Court.
Trentham argued, among other things, that:
- Mr Friend had commenced the appeal for the improper purpose of avoiding the establishment of a precedent for the Woolloongabba area if the development application was approved and had continued the appeal even after becoming aware that such a purpose lacked merit in a planning sense. The allegation was based on a letter sent from Mr Friend to another adverse submitter seeking to raise funds for the appeal.
- Mr Friend had become a director and shareholder of the legal practice acting for the appellants during the course of the proceeding and that his purpose in continuing the appeal after that point was improper as he stood to profit from the litigation.
- That the opinion evidence of the submitters' town planning expert was "perverse" and that no reasonable party ought to have proceeded with the appeal based on those opinions.
- That Mr Friend had no reasonable prospects of success in relation to traffic issues, heritage issues and the relevance of a temporary local planning instrument.
- The submitters had acted unreasonably in refusing offers to settle.
Evidence was also given to the Court that the submitters' town planning expert was married to an adverse submitter.
Decision: the Court held, in dismissing the application for costs:
- There was no presumption in SPA that costs follow the event. Nor was there a presumption that each party should bear its own costs.
- Although the success of Trentham was a factor which may be taken into account, it must be seen in light of the serious drafting anomalies in the Neighbourhood Plan. Those anomalies had underpinned the opinion of the submitters' expert which, in the absence of bad faith, the submitters were entitled to rely upon in continuing with the appeal.
- Even if it was made clear to Mr Friend that the purpose of avoiding the establishment of a precedent lacked merit, it was difficult to see that it could be regarded as improper to proceed with the appeal after the point he became aware of this.
- In the absence of any evidence, the Court was not persuaded that Mr Friend continued to participate in the proceedings for an improper purpose as a result of his involvement in the legal practice representing the appellants.
- The evidence of the submitters' town planning expert was not found to be perverse, nor was he found to lack objectivity or to be a zealot. The fact that his evidence was not preferred did not render Mr Friend's prosecution of the appeal as unreasonable or improper.
- It could not be said, on either the traffic issue, the heritage issue or the temporary local planning instrument issue, that the submitters had no real prospects of success.
- The argument that there was an absence of any public interest element to the litigation had been undermined by an earlier finding of the Court which led to an Amended Notice of Appeal.
- Given the advice that the appellants had from their town planning expert, it could not be said that they acted unreasonably in not accepting offers to settle.
- It would have been prudent to advise the parties of the submitters' town planning expert's relationship with an adverse submitter. That was a long way from establishing impropriety on the part of Mr Friend or the Mannings or any unreasonableness on their part.
- The application should be dismissed.