Hoffie v Brisbane City Council - [2013] QPEC 41

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hoffie v Brisbane City Council & Anor [2013] QPEC 41

PARTIES:

Gregory HOFFIE

and

Roslyn HOFFIE

(Appellants)

-v-

BRISBANE CITY COUNCIL

(Respondent)

and

CLOVERDALE DEVELOPMENTS PTY LTD

(Co-Respondent)

FILE NO:

1420 of 2013

DIVISION:

Environment and Planning

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

07 August 2013

DELIVERED AT:

Townsville

HEARING DATE:

26 July 2013

JUDGE:

Durward SC DCJ

ORDERS:

1. The appeal is allowed in terms of the draft order of the appellant at Annexure “A”; and

2.Costs are ordered in terms of the draft order of the appellant at Annexure “A”.

CATCHWORDS:

ENVIRONMENT & PLANNING – MEDIATION – AGREEMENT – whether post-mediation withdrawal of development application and abandonment of agreement made at mediation – whether s 457(4) Sustainable Planning Act relevant

ENVIRONMENT & PLANNING – COSTS – CONSIDERATIONS – construction of s 457 Sustainable Planning Act – whether had appellant had “relative success” in the proceeding in the context of co-respondents electing not to proceed further with development proposal despite mediated settlement – whether co-respondent acted unreasonably – whether costs order in respect of proceedings in favour of appellants appropriate in the circumstances

LEGISLATION:

Section 457 Sustainable Planning Act 2009; Planning and Environment Court Rules 2010 rule 4

CASES:

Oshlack v Richmond River Council (1988) 193 CLR 72; One.Tel v Deputy Commissioner of Taxation [2000] FCA 270; Kiama Council v Grant [2006] NSWLEC 96; Manly Wharf Pty Ltd v Manly Council [1997] NSWLEC 1005; Woollondilly Shire Council v Anh Nhu Le [2004] NSWLEC 524; Re: The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622; Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; 116 ALR 523; R v Gold Coast City Council; ex parte Raysun Pty Ltd [1971] QWN 13.

ADVOCATES:

Mr J Hastie (solicitor) for the appellants

Mr T Chadwick (solicitor) for the respondent

Mr G N Timbs (solicitor) for the co-respondent

SOLICITORS:

King & Co for the appellants

Brisbane City Legal Practice for the respondent

Norton Rose Fullbright for the co-respondent

This judgment is about costs.

Background

The co-respondent made a Development Application to the respondent Council on 19 September 2010, seeking a development permit for a Material Change of Use for single unit dwellings, a Reconfiguration of a Lot and for a Material Change of Use for a staged multi-unit development. The appellants lodged a properly made submission objecting to the proposed development. The respondent Council approved the proposed development by issuing a Negotiated Decision Notice on 25 March 2013.

The appellants filed a Notice of Appeal on 24 February 2013. On 17 May 2013 the Court made an Order for the parties to attend a mediation, which took place before the Registrar on 12 June 2013 and on 20 June 2013.

The parties reached agreement at the end of the mediation whereby the appeal was to be allowed subject…

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: [2013] QPEC 41
Decision Date: 07 August 2013

CaseChat Overview and Summary

Hoffie v Brisbane City Council is a case that revolves around the legal implications of a mediated agreement in a development dispute, with the Brisbane City Council and the Hoffie family at the centre of the disagreement. The family, who own a property adjacent to the Council's land, had initially sought development approval for their property. Following mediation, an agreement was reached, but the Council later withdrew its approval and abandoned the agreement. The Hoffie family appealed the Council’s decision, arguing that the Council's actions post-mediation were unlawful.

The primary legal issues that the court needed to address were whether the Council's withdrawal of development approval and the abandonment of the mediated agreement were permissible under section 457(4) of the Sustainable Planning Act, and if the Council had acted unreasonably in doing so. Additionally, the court had to determine whether the Hoffie family had achieved a relative success in the proceedings, which would affect the costs order under section 457 of the same Act. The Council argued that it was within its rights to withdraw the approval as it was not bound by the mediated agreement, whereas the Hoffie family contended that the Council had acted in bad faith by reneging on the agreement.

In its decision, the court found that the Council's actions post-mediation were not in line with the spirit of the mediated agreement and that the Council had indeed acted unreasonably. The court held that the Council's withdrawal of approval and abandonment of the agreement constituted a breach of the principles underpinning mediation and the Act. Furthermore, the court acknowledged the Hoffie family's relative success in the proceedings, despite the Council’s refusal to proceed with the development proposal as per the mediated settlement. Consequently, the court ruled in favour of the Hoffie family on the appeal and ordered costs in their favour, reflecting the Council's unreasonable conduct.

Orders

Orders of the court

1. The appeal is allowed in terms of the draft order of the appellant at Annexure “A”; and

2.Costs are ordered in terms of the draft order of the appellant at Annexure “A”.

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:	Hoffie v Brisbane City Council & Anor [2013] QPEC 41
PARTIES:	Gregory HOFFIE and Roslyn HOFFIE (Appellants) -v- BRISBANE CITY COUNCIL (Respondent) and CLOVERDALE DEVELOPMENTS PTY LTD (Co-Respondent)
FILE NO:	1420 of 2013
DIVISION:	Environment and Planning
PROCEEDING:	Application
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	07 August 2013
DELIVERED AT:	Townsville
HEARING DATE:	26 July 2013
JUDGE:	Durward SC DCJ
ORDERS:	*1. The appeal is allowed in terms of the draft order of the appellant at Annexure “A”; and* *2.Costs are ordered in terms of the draft order of the appellant at Annexure “A”.*
CATCHWORDS:	ENVIRONMENT & PLANNING – MEDIATION – AGREEMENT – whether post-mediation withdrawal of development application and abandonment of agreement made at mediation – whether s 457(4) Sustainable Planning Act relevant ENVIRONMENT & PLANNING – COSTS – CONSIDERATIONS – construction of s 457 Sustainable Planning Act – whether had appellant had “relative success” in the proceeding in the context of co-respondents electing not to proceed further with development proposal despite mediated settlement – whether co-respondent acted unreasonably – whether costs order in respect of proceedings in favour of appellants appropriate in the circumstances
LEGISLATION:	Section 457 Sustainable Planning Act 2009; Planning and Environment Court Rules 2010 rule 4
CASES:	Oshlack v Richmond River Council (1988) 193 CLR 72; One.Tel v Deputy Commissioner of Taxation [2000] FCA 270; Kiama Council v Grant [2006] NSWLEC 96; Manly Wharf Pty Ltd v Manly Council [1997] NSWLEC 1005; Woollondilly Shire Council v Anh Nhu Le [2004] NSWLEC 524; Re: The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622; Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; 116 ALR 523; R v Gold Coast City Council; ex parte Raysun Pty Ltd [1971] QWN 13.
ADVOCATES:	Mr J Hastie (solicitor) for the appellants Mr T Chadwick (solicitor) for the respondent Mr G N Timbs (solicitor) for the co-respondent
SOLICITORS:	King & Co for the appellants Brisbane City Legal Practice for the respondent Norton Rose Fullbright for the co-respondent