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:
costs assessed on a standard basis up to and including the date
on which Council rejected Altitude's settlement offer (the
costs assessed on an indemnity basis from the Offer Date, or in
the alternative on a standard basis; and
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
Decision: The Court held:
Each party bear their own costs.
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
The Council had acted reasonably in the appeal by:
following the advice of its independent experts;
altering its position on disputed issues, when new evidence was
provided demonstrating that conditions could reasonably be imposed;
giving proper consideration to settlement offers.
The Council's case could not be said to have had no
reasonable prospects of success.
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.
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.
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
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.
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