Brian Gerard Wust v Moreton Bay Regional Council (No 2)

[2017] QPEC 36

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Brian Gerard Wust v Moreton Bay Regional Council (No 2) [2017] QPEC 36

PARTIES:

BRIAN GERARD WUST

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

3883/16

PROCEEDING:

Appeal

DELIVERED ON:

19 June 2017

HEARING DATE:

On the papers

JUDGE:

Bowskill QC DCJ

ORDER:

The respondent pay the appellant’s costs of the proceeding, in so far as it concerns the disputed conditions the subject of the decision delivered on 25 May 2017, and otherwise the parties bear their own costs of the proceeding.

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT APPLICATION – CONDITIONS APPEAL – COSTS

Sustainable Planning Act 2009 (Qld), s 457

COUNSEL:

D Favell for the Appellant

J Dillon for the Respondent

SOLICITORS:

Colwell Wright Solicitors for the Appellant

Moreton Bay Regional Council Legal Services division for the Respondent

1. On 25 May 2017 I delivered my reasons for allowing Mr Wust’s appeal against the Council’s deemed refusal of his request for a development application, in particular in relation to the two conditions which were controversial between the parties (all other issues being the subject of agreement between them):  Brian Gerard Wust v Moreton Bay Regional Council [2017] QPEC 27.

2. Mr Wust seeks an order that the Council pay his costs of the proceeding.  The Council opposes that, submitting that the appropriate order is that each party bear their own costs.

3. For the reasons that follow, I consider the appropriate order is that the Council pay Mr Wust’s costs of the proceeding, in so far as it concerns the disputed conditions the subject of my reasons delivered on 25 May 2017, but that otherwise each party bear their own costs of the proceeding.

4. Although s 457 of the Sustainable Planning Act 2009 has recently been amended, in the form as it applies to this proceeding it confers a broad discretion on the court in relation to the costs of a proceeding.  It is well established that the discretion is to be exercised without any presumption that costs follow the event, or otherwise, on the basis that there is some qualified protection against an adverse costs order.

5. A non-exhaustive list of the matters the court may have regard to in exercising the discretion is set out in s 457(2). Mr Wust relies, in particular, on:

   (a)       the relative success of the parties in the proceeding;

   (d)whether a party commenced or participated in the proceeding without reasonable prospects of success;

   (h)       whether a party has acted unreasonably leading up to the proceeding; and

   (i)        whether a party has acted unreasonably in the conduct of the proceeding.

6. For Mr Wust, it is submitted the Council’s attitude to his development proposal was unreasonable because:

   (a)firstly, the Council failed to make any decision, which necessitated an appeal against the deemed refusal, and then only gave a firm indication of its position when directed by the court;

   (b)the Council’s stance with respect to the orientation of the houses and the need for a pathway was contrary to its own previous decision to approve an identical development without such conditions;

   (c)the Council’s desire to impose the disputed conditions was so strong that its expert, Ms Roughan, expressed the opinion that the previous approval should not have been given; and

   (d)the Council’s “stubborn and deliberate insistence on the conditions (the vehicle through which this was Ms Roughan) was ultimately clear to the court” (referring to the reasons at [62]).

7. Mr Wust submits that he should not have had to incur the costs associated with this proceeding, and in light of the matters that were in issue before the court and the evidence that was led, it was unreasonable of the Council to insist on the position that it took and at no time retreated from.

8. The Council submits in response that it did not act unreasonably leading up to the proceeding.  In this regard, the point is made that the Council had requested a second extension to the decision-making period; but this was refused by Mr Wust, leading then to the appeal against the deemed refusal. 

9. The Council further submits it acted reasonably in the course of the proceeding, referring to the agreement reached about all the other issues in dispute, which was said to involve concessions on both sides; that the Council was legally represented and its case was supported by a respected and experienced independent town planning expert; and that the proceeding was conducted efficiently and expeditiously.

10. The Council also submits that it acted in the public interest, seeking to press for the inclusion of conditions to prevent what it perceived were conflicts with the planning scheme and to protect and improve the existing and future safety, character and amenity of Cox Road and the proposed development, and enhance pedestrian network permeability and accessibility.  The Council submits that its position was fairly arguable and not unreasonable.

11. The Council submits that the success of Mr Wust in this appeal should not be the decisive or determinative factor in terms of costs.  As will be noted from the summary above, that was not the primary basis on which Mr Wust’s application was pressed.

12. An unusual feature of this case is the fact that the Council had previously approved an identical development, by Mr Wust, one block away on Cox Drive.  That identical development was approved under the 2005 planning scheme, which was the scheme in force when the present application for approval was made.  Shortly after that the 2016 planning scheme came into force, and so it was relevant to have regard to that as well.  However, it was apparent that the 2016 planning scheme did not meaningfully alter the position, in so far as the subject matter of the two disputed conditions is concerned.[1]

    [1]            See the reasons at [20], [63] and [79].

13. In those circumstances, although I accept that the previous approval does not bind the Council in terms of its decision in relation to a later development, having regard to the matters outlined in my reasons at [28] and [29], it is understandable that a developer in Mr Wust’s position would feel some frustration about the Council’s changed position.

14. I am of the view that the Council’s position in relation to the disputed conditions was entirely unpersuasive, having regard to the factual context of the particular development concerned and the planning scheme provisions.   It does seem to be the case that the Council either arrived at, or at least persisted in, its insistence on the disputed conditions on the basis of Ms Roughan’s opinion, which included that the original, existing development ought never have been approved – inconsistent with both the fact of its approval, and the Council’s position otherwise in relation to the current proposal.[2]  With due respect to Ms Roughan, I did find her construction of the planning scheme provisions, leading to the opinion that the development, without the disputed conditions, would be in conflict with both planning schemes, to be overly pedantic and inflexible.

    [2] Reasons at [62].

15. Keeping in mind that an order for costs is not made to punish the unsuccessful party, but rather to compensate the successful party in appropriate circumstances,[3] in my view, in this particular case, it is appropriate, in the exercise of the discretion, to make an order that Mr Wust recover part of his costs of the proceeding, being that part concerning the litigation of the disputed conditions the subject of my decision given on 25 May 2017.

    [3]Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at [67]; see also Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [34].

16. In litigating those disputed conditions to a hearing, Mr Wust has been put to cost and expense that, in my view, could well have been avoided by a reasonable and practical approach on the part of the Council.

17. In relation to the costs of the proceeding otherwise, although the appeal was one against a deemed refusal, in circumstances where there were a number of disputed issues, which were able to be resolved between the parties through co-operation, I am of the view that the appropriate order is that each party bear their own costs.