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…
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- Case
- [2013] QPEC 41
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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