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(Rackemann DCJ - 19 September 2014)
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Planning and Environment – Costs – whether the respondent/council should pay the costs of the successful applicant/appellant – whether respondent/council although unsuccessful in the case had reasonable prospects of success and acted reasonably – whether opinions of the expert town planner engaged by the council were supportable – whether the council unreasonably refused settlement offer

Facts: This was an application for costs made by Altitude Corporation Pty Ltd (Altitude) following the resolution of the merits appeal.

Altitude had been successful in its appeal against the Respondent, Isaac Regional Council's refusal of its development application for multi-unit dwellings at Mills Avenue, Moranbah. It sought orders that the Council pay its costs as follows:

  1. costs assessed on a standard basis up to and including the date on which Council rejected Altitude's settlement offer (the Offer Date);
  2. costs assessed on an indemnity basis from the Offer Date, or in the alternative on a standard basis; and
  3. an order that Queen's Counsel be certified as an appropriate cost incurred by the appellant in the appeal.

In determining the application, the Court had to consider whether the circumstances in this appeal, justified the Court using its discretion under section 457 of the Sustainable Planning Act 2009 (SPA) to award costs against the Council. Furthermore, it had to consider whether a 'Calderbank offer' made by Altitude and rejected by the Council prior to the substantive hearing was of consequence to the question of costs.

Decision: The Court held:

  1. Each party bear their own costs.
  2. The fact that the proposed development was suitably zoned, code assessable and largely compliant with the relevant performance criteria provisions in the planning scheme did not ordinarily mean costs would be awarded. These were matters that are relevant to a consideration of Altitude's relative success in the appeal.
  3. The Council had acted reasonably in the appeal by:
    1. following the advice of its independent experts;
    2. altering its position on disputed issues, when new evidence was provided demonstrating that conditions could reasonably be imposed; and
    3. giving proper consideration to settlement offers.
  1. The Council's case could not be said to have had no reasonable prospects of success.
  2. It was relevant to the question of costs, that until Altitude adopted its amended proposal, it was relying on a development which was more intense (by about 20 dwellings) than was ultimately considered and approved by the Court.
  3. In considering a 'Calderbank offer', the jurisdiction is not one where there is a presumption in favour of costs following the event. Accordingly, whether an applicant does as well or better than the offer made, does not, of itself, lead to a conclusion that a costs order should be made nor that the party to which the offer was made acted unreasonably in refusing it.
  4. Had the Court been minded to make a costs order, then the fact that an offer was made would have been an important factor for considering whether indemnity costs would be payable. In that instance, it would also have been relevant to explore the reasonableness of the Council's reasons for refusing the offer.
  5. As there was no award of costs in this instance, it was unnecessary to consider the basis for calculating costs or the appropriateness of briefing Senior Counsel.