Department of Transport and Main Roads v Brisbane City Council & Anor & Orb Holdings Pty Ltd

The Department of Transport and Main Roads (the applicant) sought a declaration that a development approval granted by Brisbane City Council (the first respondent) to Orb Holdings Pty Ltd (the second respondent) was invalid. The applicant contended that its concurrence agency response was received too late and thus invalid, leading to an improper development approval. The matter was before the Planning and Environment Court, presided over by Judge Robin QCP & E. The central legal issues were whether the applicant had standing to challenge the development approval due to the lateness of its response and, if so, whether costs could be awarded to the second respondent under the Integrated Planning Act 1997 or the Sustainable Planning Act 2009.

The court examined the applicability of section 4.1.23(2) of the Integrated Planning Act 1997 and section 457(2) of the Sustainable Planning Act 2009, which allow for the awarding of costs if proceedings are found to be frivolous or vexatious. The court noted that the applicant's solicitors had initially represented the second respondent, leading to a conflict of interest that was later resolved. Despite the applicant's argument that its application was not vexatious, the court found the proceeding to be vexatious due to the applicant's late and invalid concurrence agency response, and the lack of an application for relief that could have remedied the situation. The court determined that the applicant's actions were productive of serious and unjustified trouble and harassment, fulfilling the criteria for a vexatious proceeding.

The court awarded costs to the second respondent but declined to order indemnity costs. While acknowledging the vexatious nature of the application, the court considered the motivation and intentions of the applicant, ultimately deciding against the higher burden of indemnity costs. The court emphasized that the government, while expected to be a model litigant, was not in a special or more exposed situation than a private litigant in this context. The court's final order directed that costs be awarded to the second respondent, excluding the term "on an indemnity basis" from the original application.