Cox v Brisbane City Council (No 2)

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cox & Ors v Brisbane City Council & Anor (No 2) [2013] QPEC 78

PARTIES:

BERKELEY COX, CAROL COX, LINDA ERNST, TAMLYN LAMBERT, DARIN CARRUTHERS, DANA CARRUTHERS, GEOFFREY CRITTENDEN, JANITH CRITTENDEN and TOBY ESCOTT
(first appellants)

and

BODY CORPORATE FOR 2 HETHERINGTON STREET, COMMUNITY TITLE SCHEME 17375
(second appellant)

and

BJ PROPERTIES MANLY PTY LTD
ACN144470075
(third appellant)

and

MAYNE PROPERTY DEVELOPMENT PTY LTD
ACN009793444
(fourth appellant)

and

BRISBANE CITY COUNCIL
(respondent)

and

CHILDHOOD CANCER SUPPORT INC
(co-respondent)

FILE NO/S:

BD 858 of 2013

DIVISION:

Planning and Environment Court

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers – submissions received 22 October to 11 November 2013

JUDGE:

Rackemann DCJ

ORDER:

Each party bear their own costs of the proceeding, including their own costs of the application for costs

CATCHWORDS:

Planning and Environment – Costs – Application for costs by successful applicant/co-respondent against unsuccessful objector/appellants – Where issues related to compliance with the planning scheme and the acceptability of amenity impacts – Nature of the parties’ interests – Whether ownership of adjoining rental property, the amenity of which may be affected, is a relevant commercial interest – Weight to be given to that in circumstances – Relative strength / weakness of appellant’s case – Where appellants had taken advice as to prospects – Where conduct of appellants was reasonable – Where not all appellants likely to suffer significant amenity impacts but a respectable unitary case was run – Costs of unsuccessful costs application

COUNSEL:

A Walls for the appellant

R Traves QC and N Loos for the co-respondent

SOLICITORS:

Gantt Legal for the appellant

Norton Rose Fulbright for the co-respondent

1. This submitter appeal was against the Council’s approval of a development application by the co-respondent (a not-for-profit organisation) to facilitate a multi-unit development, for special needs accommodation, on a 455m² residential allotment currently improved with a single detached character house.  The appeal was dismissed on 6 September 2013, at which time reasons were published.  Subsequently, the successful co-respondent has applied for orders that all bar one of the appellants pay its costs of and incidental to the proceeding.  The successful respondent did not seek a costs order.

1. The subject appeal was lodged this year, and so is subject to the new costs provisions of s 457 of the Sustainable Planning Act 2009 (SPA).  By reason of s 457(1), costs of the proceeding are in the discretion of the Court.  The discretion is an open one.  It is not to be approached either on the basis that there is a presumption that costs follow the event (as is the general rule in other courts dealing with ordinary civil litigation) or on the basis that there is a qualified protection against an adverse costs order, as was previously the case in SPA.

1. The discretion, while expressed in general terms, must be exercised judicially and having regard to relevant circumstances. A non-exhaustive[1] list of considerations to which the…