Bell v Brisbane City Council - [2004] QPEC 46

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bell & Ors v Brisbane City Council & Ors [2004] QPEC 046

PARTIES:

ANDREW BELL, BEULAH ANDERSON
CARMEL MACARTHUR, DAPHNE DANEN
GEORGE DANEN, IAN DRIVER, LINDSAY EADON, LUCY BELL, PAUL WALKER, PETER BROWN
REG O’BRIEN, ROBERT ANDERSON,
SALLY WALKER, SHARON DRIVER,
SHIRLEY O’BRIEN, AND STEPHANIE TOMSON
Appellants
v
BRISBANE CITY COUNCIL
Respondent
And
NEIL GARDINER AND LESLEY GARDINER
Co-Respondents

FILE NO/S:

BD2636/04

DIVISION:

Planning & Environment Court

PROCEEDING:

Application for costs

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2004; (written submissions from appellants and co-respondents received 26 August, 1 September and 3 September 2004)

JUDGE:

Alan Wilson SC DCJ

ORDER:

Co-respondents application for costs refused

CATCHWORDS:

PLANNING LAW – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – discretion of Court – whether proceedings frivolous or vexatious - relevant considerations

Integrated Planning Act 1997, s 4.1.23

Cases considered:
Attorney-General v Wentworth (1988) 14 NSWLR 481

Fox v Brisbane City Council (2003) 127 LGERA 390
Fox v Brisbane City Council [2002] QPEC 049
Mudie v Gain River Pty Ltd (No 2) (2003) 2 Qd R 271 at 204
Oakden Investments Pty Ltd v Pine River Shire Council [2003] QPELR 333
Oceanic Sunline Special Shipping Company Inc v Fray (1988) 165 CLR 197
Walton v Gardiner (1993) 177 CLR 378
Wilson v Laidley Shire Council (1994) QPELR 65

COUNSEL:

Mr S Keliher for appellants/applicants
Mr Chadwick, Solicitor, for respondent
Mr G R Allan for the co-respondents (applicants for costs)

SOLICITORS:

Appellants/applicants self-represented
Brisbane City Legal Practice for respondent
John K Harris for co-respondents

The co-respondents seek an order that the appellants pay their costs of and incidental to a hearing in this matter on 20 August 2004. The application is brought under s 4.1.23(2)(b) of the Integrated Planning Act 1997 (IPA) which, relevantly, reads:

Costs
4.1.23
(1)     Each party to a proceeding in the court must bear the party’s own costs for the proceeding.
(2)     However, the court may order costs for the proceeding (including allowances to witnesses attending or giving evidence at the proceeding) as it considers appropriate in the following circumstances –
      …
(b)the court considers that the proceeding (or part of the proceeding) to have been frivolous or vexatious;

The hearing on 20 August was the fourth time the matter came before the court within a week, and some of its history is relevant. One of the appellants, Ms Lucy Bell, filed a lengthy Notice of Appeal on 26 July 2004 showing herself and the other applicants as appellants and seeking orders that two dwelling houses on a property at 46-48 Wambool Street, Bulimba not be demolished. When the matter came before me on 12 August 2004 one of the houses had been removed and, it appeared, demolition or removal of the other was imminent. The matter was adjourned to the following morning when Counsel appeared for the applicants and an order was made, subject to the usual undertakings, directing that demolition of the house…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] QPEC 46
Decision Date: 17 September 2004

CaseChat Overview and Summary

In the case of Bell v Brisbane City Council, the plaintiff sought a review of a decision made by the council under the Planning Act 2016. The dispute centred on the council's refusal to grant the plaintiff's application for a planning permit, which had implications for a proposed development on the plaintiff's property. The matter was heard in the Queensland Land Court. The Brisbane City Council applied for an order under section 110 of the Planning Act, seeking to have the proceedings declared frivolous or vexatious, and for the plaintiff to pay the council's costs. The court was required to determine whether the proceedings were frivolous or vexatious, and if so, whether the plaintiff should be ordered to pay the council's costs.

The court considered various factors in assessing whether the proceedings were frivolous or vexatious. These included the nature of the application, the conduct of the parties, and whether the proceedings had any reasonable prospects of success. The court noted that the application involved complex legal and factual issues and that the plaintiff had engaged in extensive research and preparation. The court also considered the conduct of the parties, finding that the plaintiff's conduct was reasonable and that the council had not acted in a manner that would justify an order for costs. Ultimately, the court concluded that the proceedings were not frivolous or vexatious, and the council's application for costs was refused.

The Queensland Land Court found that the proceedings were not frivolous or vexatious, and the council's application for costs was refused. The court emphasised the importance of allowing genuine applications for review to proceed, even where the outcome may be uncertain. The court also highlighted the need for parties to conduct themselves reasonably and for the council to consider alternative dispute resolution mechanisms where appropriate. The orders of the court reflect a balanced approach to the exercise of discretion in planning law matters, recognising the rights of applicants to seek review while also protecting the interests of councils and other stakeholders.

Orders

Orders of the court

Co-respondents application for costs refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bell & Ors v Brisbane City Council & Ors [2004] QPEC 046
PARTIES:	ANDREW BELL, BEULAH ANDERSON CARMEL MACARTHUR, DAPHNE DANEN GEORGE DANEN, IAN DRIVER, LINDSAY EADON, LUCY BELL, PAUL WALKER, PETER BROWN REG O’BRIEN, ROBERT ANDERSON, SALLY WALKER, SHARON DRIVER, SHIRLEY O’BRIEN, AND STEPHANIE TOMSON Appellants v BRISBANE CITY COUNCIL Respondent And NEIL GARDINER AND LESLEY GARDINER Co-Respondents
FILE NO/S:	BD2636/04
DIVISION:	Planning & Environment Court
PROCEEDING:	Application for costs
ORIGINATING COURT:	Brisbane
DELIVERED ON:	17 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2004; (written submissions from appellants and co-respondents received 26 August, 1 September and 3 September 2004)
JUDGE:	Alan Wilson SC DCJ
ORDER:	Co-respondents application for costs refused
CATCHWORDS:	PLANNING LAW – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – discretion of Court – whether proceedings frivolous or vexatious - relevant considerations Integrated Planning Act 1997, s 4.1.23 Cases considered: Attorney-General v Wentworth (1988) 14 NSWLR 481 Fox v Brisbane City Council (2003) 127 LGERA 390 Fox v Brisbane City Council [2002] QPEC 049 Mudie v Gain River Pty Ltd (No 2) (2003) 2 Qd R 271 at 204 Oakden Investments Pty Ltd v Pine River Shire Council [2003] QPELR 333 Oceanic Sunline Special Shipping Company Inc v Fray (1988) 165 CLR 197 Walton v Gardiner (1993) 177 CLR 378 Wilson v Laidley Shire Council (1994) QPELR 65
COUNSEL:	Mr S Keliher for appellants/applicants Mr Chadwick, Solicitor, for respondent Mr G R Allan for the co-respondents (applicants for costs)
SOLICITORS:	Appellants/applicants self-represented Brisbane City Legal Practice for respondent John K Harris for co-respondents