Friend v Brisbane City Council - [2014] QPEC 39

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Friend v Brisbane City Council [2014] QPEC 39

PARTIES:

ROBERT FRIEND
(appellant)

and

~~PHILIP AERIAL, JO AERIEAL~~, GREGORY MANNING, KAREN MANNING and ~~THE KANGAROO POINT RESIDENTS’ ASSOCIATION~~

v

BRISBANE CITY COUNCIL
(respondent)

and

TRENTHAM HOLDINGS PTY LTD ACN 066 159 984 TRADING AS BT HOTELS AND PROPERTY GROUP (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
(co respondent by election)

FILE NO/S:

BD293/13

DIVISION:

Planning & Environment Court

PROCEEDING:

Application for costs

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

31 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2014, written submissions received until June 2014

JUDGE:

Robertson DCJ

ORDER:

Application Dismissed

CATCHWORDS:

UNSUCCESSFUL SUBMITTER APPEAL – where appeal unsuccessful primarily on the basis of the rejection of the town planning opinion evidence of the planner relied upon by appellants

COSTS – where successful developer applies for costs under s 457 of the SPA – where developer wholly successful in its appeal, primarily because of the Court’s construction of the Planning Scheme – where developer alleges submitter commenced and/or participated in the appeal for an improper purpose – where town planning expert has failed to disclose that his wife was an adverse submitter – where one of the appellants held property with the solicitor for all appellants and a commercial interest in the incorporated legal practice – whether the proceeding affects a matter of public interest – whether the appellants had acted unreasonably – where application made against (2) submitters who had filed a Notice of Discontinuance well before the hearing, which had the effect of staying the effect of the Notice

COUNSEL:

Mr G Gibson QC with Mr J Houston for respondent/appellant

Mr D O’Brien QC for applicant/co-respondents by election

SOLICITORS:

Robertson Kane for the respondent/appellant

Mullins Lawyers for the applicant/co-respondent by election

Consequent upon the dismissal of this appeal by me on 6 December 3013, Trentham have applied for costs against Robert Friend, and Mr and Mrs Manning. As my reasons indicate the appeal proceeded over five days from 30 September 2013 to 4 October 2013. Mr and Mrs Manning filed a notice of discontinuance on 5 September 2013. On 17 September 2013 the co-respondent by election (Trentham) filed an application in pending proceedings seeking costs against Mr and Mrs Manning and the application was adjourned pending the outcome of the hearing of the appeal. Under r 3 of the Planning and Environment Court Rules 2010 (“the P&E Court Rules”), a discontinuance or withdrawal does not take effect until the day the Court decides the application or a later day decided by the Court.

As a result of directions orders, Trentham has filed an affidavit by Holly Whitcroft, solicitor on 24 February 2014 upon which it relies in relation to its application for costs, in addition to the reasons for judgment and other evidence referred to in its outline of submissions prepared by Mr O’Brien QC and forwarded to me under cover of email dated 8 April 2014. Mr Friend…

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: [2014] QPEC 39
Decision Date: 31 July 2014

CaseChat Overview and Summary

The appeal in Friend v Brisbane City Council involved a dispute between the Friend family and the Brisbane City Council regarding the approval of a development application. The Friends, the appellants, contested the Council's decision to approve the development, which was led by the respondent, the developer. The Town and Country Planning Appeal Tribunal dismissed the Friends' appeal, and they sought to appeal to the Supreme Court of Queensland. The Court was required to consider whether the Tribunal's decision was correct and whether the appellants were entitled to costs under the State Planning Act 2018.

The legal issues before the Court included the interpretation of the Planning Scheme, the admissibility and weight of the town planning opinion evidence, and whether the appellants had acted unreasonably in pursuing the appeal. The appellants relied heavily on the opinion of their town planning expert, which was rejected by the Tribunal. Additionally, the Court had to determine whether the developer's application for costs was justified, given the appellants' alleged improper purpose in initiating and continuing the appeal.

The Court found that the primary reason for the unsuccessful appeal was the Tribunal's rejection of the town planning opinion evidence. The Court held that the evidence was not reliable and did not support the appellants' case. Regarding the costs application, the Court held that the developer was successful in its appeal, but the appellants' actions did not warrant an award of costs. The Court found that the appellants had not acted unreasonably, and the proceeding did not affect a matter of public interest. The Court also noted that the application was made against two submitters who had already filed a Notice of Discontinuance before the hearing.

The Court dismissed the developer's application for costs against the appellants, finding no grounds for such an award. The Court did not consider the submitters' prior discontinuance notice to be a factor that would warrant costs against the appellants. The Court concluded that the appellants' actions, while contested, did not meet the threshold for an award of costs under the State Planning Act 2018.

Orders

Orders of the court

Application Dismissed

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:	Friend v Brisbane City Council [2014] QPEC 39
PARTIES:	ROBERT FRIEND (appellant) and ~~PHILIP AERIAL, JO AERIEAL~~, GREGORY MANNING, KAREN MANNING and ~~THE KANGAROO POINT RESIDENTS’ ASSOCIATION~~ v BRISBANE CITY COUNCIL (respondent) and TRENTHAM HOLDINGS PTY LTD ACN 066 159 984 TRADING AS BT HOTELS AND PROPERTY GROUP (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (co respondent by election)
FILE NO/S:	BD293/13
DIVISION:	Planning & Environment Court
PROCEEDING:	Application for costs
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	31 July 2014
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2014, written submissions received until June 2014
JUDGE:	Robertson DCJ
ORDER:	Application Dismissed
CATCHWORDS:	UNSUCCESSFUL SUBMITTER APPEAL – where appeal unsuccessful primarily on the basis of the rejection of the town planning opinion evidence of the planner relied upon by appellants COSTS – where successful developer applies for costs under s 457 of the SPA – where developer wholly successful in its appeal, primarily because of the Court’s construction of the Planning Scheme – where developer alleges submitter commenced and/or participated in the appeal for an improper purpose – where town planning expert has failed to disclose that his wife was an adverse submitter – where one of the appellants held property with the solicitor for all appellants and a commercial interest in the incorporated legal practice – whether the proceeding affects a matter of public interest – whether the appellants had acted unreasonably – where application made against (2) submitters who had filed a Notice of Discontinuance well before the hearing, which had the effect of staying the effect of the Notice
COUNSEL:	Mr G Gibson QC with Mr J Houston for respondent/appellant Mr D O’Brien QC for applicant/co-respondents by election
SOLICITORS:	Robertson Kane for the respondent/appellant Mullins Lawyers for the applicant/co-respondent by election