Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2)
[2014] QPEC 60
•22 October 2014.
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) [2014] QPEC 60
PARTIES:
HYDROX NOMINEES PTY LTD
(applicant/appellant)
v
NOOSA SHIRE COUNCIL
(respondent)
FILE NO/S:
1505 of 2013
PROCEEDING:
Costs application
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
22 October 2014.
DELIVERED AT:
Maroochydore
HEARING DATE:
14 August 2014
JUDGE:
Rackemann DCJ
ORDER:
The respondent is to pay 85% of the appellant’s costs of the appeal.
CATCHWORDS:
PLANNING AND ENVIRONMENT – COSTS – whether the respondent/council should pay the costs of the successful applicant/appellant – whether the respondent/council resisted the appeal for an ulterior purpose – whether the respondent/council had reasonable prospects of success and acted reasonably – where the respondent/council received advices and warnings as to the weakness of its case – where the respondent/council refused a settlement offer contrary to advice – whether a costs order in favour of the successful applicant/appellant should be moderated
COUNSEL:
D Gore QC and B Job for the appellant
N Kefford for the respondent
SOLICITORS:
Connor O’Meara for the appellant
Wakefield Sykes for the respondent
On 30 April 2014 reasons were published for allowing the appellant’s appeal against the respondent’s refusal of a development application to facilitate the establishment of a Masters Home Improvement Centre and a separate showroom on land within the Noosa Shire Business Centre. The appellant now seeks its costs of the appeal.
The Court’s jurisdiction to make an order as to costs arises by reason of s 457(1) of the Sustainable Planning Act 2009 (SPA) which provides as follows:
“Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.”
The discretion is open. It is to be exercised judicially, but without any presumption one way or the other. In particular, while the relative success of the parties is a relevant factor, and might, in a particular case, prove decisive, there is no presumption that costs should ordinarily follow the event.[1]
[1]Cox v Brisbane City Council & Anor (No 2) [2013] QPEC 78 at [2], YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 2) [2014] QPEC 43 at [15] – [16], Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2014] QPEC 55 at [4].
By reason of s 457(2) the Court may have regard to any of the following matters:
“(a) the relative success of the parties in the proceeding;
(b) the commercial interests of the parties in the proceeding;
(c) whether a party commenced or participated in the proceeding for an improper purpose;
(d) whether a party commenced or participated in the proceeding without reasonable prospects of success;
(e) if the proceeding is an appeal against a decision on a development application and the court decides the decision conflicts with a relevant instrument as defined under section 326(2) or 329(2), whether the matters mentioned in section 326(1) or 329(1) have been satisfied;
(f) if the proceeding is an appeal to which section 495(2) applies and there is a change to the application on which the decision being appealed was made, the circumstances relating to making the change and its effect on the proceeding;
(g) whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding;
(h) whether a party has acted unreasonably leading up to the proceeding, including, for example, if the proceeding is an appeal against a decision on a development application, the party did not, in responding to an information request, give all the information reasonably requested before the decision was made;
(i) whether a party has acted unreasonably in the conduct of the proceeding, including, for example—
(i) by not giving another party reasonable notice of the party’s intention to apply for an adjournment of the proceeding; or
(ii) by causing an adjournment of the proceeding because of the conduct of the party;
(j) whether a party has incurred costs because another party has introduced, or sought to introduce, new material;
(k) whether a party has incurred costs because another party has not complied with, or has not fully complied with, a provision of this Act or another Act relating to a matter the subject of the proceeding;
(l) whether a party has incurred costs because another party has defaulted in the court’s procedural requirements;
(m) whether a party should have taken a more active part in a proceeding and did not do so.”
Reference was made, in the submissions, to sub-paragraphs (a), (c), (d), (e), (g) and (i).
That list of considerations is not exclusive. Section 457(3) provides:
(3) Subsection (2) does not limit the matters to which the court may have regard in making an order as to costs.
The costs application is brought against the respondent as the successor of the local government which decided the development application and as the party which unsuccessfully sought to resist the appeal from that decision.[2] It is the local planning authority. It does not have a commercial interest in the outcome of the case. The assessment manager (and, in this case, its successor), is required to be a party to the proceeding.[3] It is not a party by election. The appellant bore the onus in the appeal.
[2]The present respondent is, for land in Noosa, the successor to the Sunshine Coast Regional Council (from 1 January 2014) which decided the application. Under s 48 of the Local Government (De-amalgamation Implementation Regulation 2003 a pending legal proceeding against Sunshine Coast Regional Council for a matter relating to the new local government area of Noosa Shire Council was required, from 1 January 2014, to be continued against Noosa Shire Council. For convenience I have, in the circumstances, used the expressions the “Council” or the “respondent” as a reference to the Council which made the decision and/or its successor as the case may be.
[3]s 485(2) SPA.
The appellant was the successful party in the appeal. It consequently obtained an approval, subject to conditions, of both the proposed Masters and the proposed showroom,[4] the latter of which was ultimately uncontroversial.
[4]The order granting the approval was made on 15 July 2014.
Not only was the appellant successful in obtaining the approval which it sought, but it was also successful on all but one of the areas which had been in dispute. The issues, as litigated, were summarised in the earlier reasons[5] as relating to:
[5]at paragraph [11].
1. conflict with the planning scheme;
2. need and benefit;
3. economic impact;
4. sufficiency of grounds to warrant approval notwithstanding any conflict.
In that regard I found that:
1. whilst the proposal either complied with or supported some aspects of the Planning Scheme, there was a level of conflict with the provisions relating to what is intended within the relevant precincts of the Noosa Shire Business Centre (NSBC).[6]
[6]paragraph [47].
2. there is a need for the proposal and its provision would prove beneficial for the community.[7]
3. the proposed Masters store would, on balance, lead to a significant improvement in the extent and adequacy of services, even if its economic impact were to result in some store closures and some diminution in the level of service offered by others.[8]
4. there were sufficient grounds to approve the proposal notwithstanding conflict with the Planning Scheme.
[7]paragraph [100].
[8]paragraph [68].
It was contended that the respondent had resisted the appeal for an ulterior purpose. The respondent’s reasons for refusal included that:
“2. the proposed development has the potential to adversely impact on the economic viability of numerous existing businesses, particularly in the Noosaville Locality …”.
The Council’s solicitor, Mr Sykes, deposed that subsequent advice was received from Mr Norling as follows:[9]
“Mr Norling advised that the proposal would impact adversely upon existing traders in Noosaville. However, he advised that such impact would be at the level of private economics and would not adversely impact the hierarchy of centres. Accordingly Mr Norling advised he could not support that aspect of the Council’s reasons for refusal.”
[9]Exhibit 32.
Mr Sykes’ file note of his telephone conversation with Mr Norling in which that advice was given includes the following:[10]
“As to the impact, he thinks its greatest impact will be on the new Bunnings but some other smaller outlets would be affected in Noosaville and some could close. However, he regards this as at the level of private economics and won’t effect (sic) the hierarchy of centres, so he doesn’t think we can refuse on impact.”
[10]Exhibit 30 page 225.
Mr Sykes deposed that the preliminary advice referred to in his affidavit was taken into account in settling the Consolidated Reasons for Refusal upon which the Council relied in the hearing. Those issues altered paragraph 2 in a way which did allege “unplanned and unacceptable economic impacts,” but deleted the viability issue.
Mr Norling, in his testimony, said that, it was his understanding, on the basis of what he thought he was told on several occasions,[11] that the Council had refused the application “on behalf of” the small traders within the Noosa region and that, despite the deletion of the viability issue, he understood that that continued to be the real basis for the Council’s opposition to the proposal.[12] It was submitted, for the appellant, that this pointed to the appeal being pursued for the purpose of protecting the viability of individual traders, when that was an ulterior purpose for the following reasons:
“Here, the protection of the viability of small traders was not a legitimate purpose to pursue, given that it had been abandoned as an issue in the proceedings, and that the evidence, and the advice provided to Council by its experts, otherwise fell short of the test established in Kentucky Fried Chicken Pty Ltd v Gantidis 1979 140 CLR 675, 687.”
[11]T2-84; T3-12.
[12]T3-13 L34.
The respondent denies that it pursued the appeal for that purpose. Mr Sykes deposed that:[13]
[13]Exhibit 32 pages 3-4.
“10. I refer to the evidence of Mr Norling, in particular at transcript reference T3-12/35 to T3-13/35. To my knowledge, with one exception which I explain below, after the advice from Mr Norling that he could not support ground 2 of the Council’s initial reasons for refusal and finalisation of the Council’s consolidated reasons for refusal dated 17 June 2013, the impact of the proposal on local traders was not further considered or discussed by the team (including Mr Norling) or with the Council planning officer who was instructing me, as a reason, of itself, for defending the Council’s refusal of the application.
11. The one exception occurred when on 22 January 2014 I telephoned the newly elected Mayor of the Noosa Council, Mr Noel Playford. I had not discussed the appeal with Mr Playford and felt it incumbent upon me to do so to give him the opportunity to question me on any aspect of the matter. We had a discussion of about 10-15 minutes when I canvassed the issues and explained in general terms the Council’s strengths and weaknesses. At the end of the conversation I recall he said words to the effect of ‘Well, if you want my opinion, I think we should be sticking up for local traders and fighting the case to protect them.’ My recollection is that there was no further discussion and the conversation ended shortly after that comment made by him.
12. Subsequently I think either prior to or during a break in a conference in Brisbane with Mr Norling, I mentioned the conversation to him quite casually saying words to the effect that ‘the Mayor is certainly right behind the case, he thinks we should be sticking up for local traders.’ Although I can’t be certain, my recollection is that we were alone when this occurred. I can’t recall any further discussion on it and was surprised at Mr Norling’s evidence that his understanding was that this was the real reason for the Council fighting the case.
13. At no time did I suggest the Mayor’s personal views represented the position, or the instructions, of the Council.
14. At no time did I suggest or instruct Mr Norling that protecting the local traders was the reason the Council was defending the appeal.
15. In all of my involvement for the Council in preparing the case, I have no knowledge of any purpose for defending the matter other than the grounds first notified by the Council in its reasons refusal (sic) and subsequently amended in the consolidated grounds, including conflict with the scheme provisions and absence of sufficient need to overcome that conflict. Apart from the comment from the Mayor (which I took as being a personal observation) I am not aware of the matter of the impacts on local traders from the proposal being discussed by anyone connected with the Council as the real reason for defending the case.”
Notwithstanding this, the appellant remained perhaps somewhat understandably sceptical, since, as it pointed out:
(a) Mr Norling’s evidence is consistent with the Council’s initially formulated grounds for refusal[14] - that the proposal “has the potential to adversely impact upon the economic viability of numerous existing businesses, particularly in the Noosaville Locality”;
[14]Ex 2, Vol 2, p 382.
(b) Mr Norling was not re-examined about the evidence which he had given;
(c) Council did not seek to adduce any further evidence from Mr Norling about his evidence;
(d) whilst Mr Sykes may not have instructed Mr Norling that protecting smaller traders was the reason for Council’s refusal, Mr Norling’s evidence was clear and given more than once. It was submitted that Mr Norling’s evidence might have been based on information he obtained from persons other than Mr Sykes;
(e) paragraph 10 of Mr Sykes’ Affidavit is limited to his own knowledge about the advice sought by, and given to, Mr Norling. It is also curious that the impact on local traders is said to be not a reason “of itself” for defending refusal;
(f) Mr Sykes’ recollection is also somewhat uncertain; and
(g) Mr Norling’s evidence was obviously consistent with the views of the Mayor of the reconstituted Council.
Nevertheless, the evidence of Mr Norling’s “understanding,” seen in the light of the evidence of Mr Sykes, leaves me short of being persuaded to find that the Council was secretly maintaining its case on the basis of a concern for which it had an insufficient evidentiary foundation and which it had formally dropped as an issue.
I note Mr Sykes’ evidence that “the impact of the proposal on local traders was not further considered or discussed … as a reason, of itself, for defending the Council’s refusal of the application,” even though, at the end of the hearing, it was submitted on behalf of the respondent that:
“There is no doubt that the proposal will have very significant impacts on existing traders… While it cannot be proved that any store will close, the impacts anticipated by the economic experts … are very significant, and will at least lead to a loss of levels of service to the public.”
Given the state of the evidence of even its own expert however, it is difficult to see how the economic impact issue, even in its amended form, could have justified a refusal of the application or even been a significant supporting consideration to buttress a refusal. As noted in the reasons for judgment, both Mr Duane (the economist called by the appellant) and Mr Norling agreed that the impact of the proposal would be a net benefit, albeit that Mr Norling saw the benefit as being of a lesser level than did Mr Duane.[15]
[15]paragraph [55].
In seeking to resist an adverse costs order, Counsel for the respondent submitted that the Council acted reasonably in running what was at least a fairly arguable, rather than hopeless, case (and therefore one with reasonable prospects[16]) on a legitimate planning issue of some public importance (the centres hierarchy and the planning for the Shire Business Centre). Those are (if accepted) relevant matters, but are not necessarily determinative[17] and there are some things to note in the context of this case.
[16]see Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) supra at [25] and the footnoted cases.
[17]see Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) supra at para [25]. That case concerned a local government which had unsuccessfully sought to resist an appeal from its decision to refuse, which decision had been made consistently with the recommendation of an independent town planning consultant.
First, whilst the legitimate planning concern of some public importance was said to be planning for the centre hierarchy,[18] and whilst some conflict with the provisions relating to the precincts of the Shire Business Centre was identified, the economists, including Mr Norling, agreed that the proposal would positively contribute to the centre hierarchy.
[18]respondent’s submissions on costs paragraph 11.
Secondly, there were aspects of the appeal, or of issues in the appeal, which were either never likely to justify refusal or which were unsupported or unsupportable. The impact issue has already been discussed. Refusal of the showroom component was not urged at the hearing. Further, in October 2013, some 4 months after delivery of the Consolidated Reasons for Refusal, Council notified that it would contend that even if the proposal satisfied a need for a large format hardware store within the region (my underlining): “there is insufficient need for the proposed development to justify its approval despite the identified conflicts with the Scheme, particularly the conflict occasioned by the loss of industrial land.” At the hearing however, Mr Norling did not quibble with Mr Duane’s opinion that the potential loss of industrial land was inconsequential given the supply of land available to service the relatively low demand for industrial land within the Shire.[19]
[19]Reasons for judgment paragraph [107].
Thirdly, the case, whilst perhaps fairly arguable (at least on the basis of there being some degree of conflict with the Planning Scheme and, on Mr Norling’s evidence, arguably an insufficiently strong need), was undeniably weak. Whilst there was an element of conflict with some provisions of the Planning Scheme, the case for approval notwithstanding conflict was always strong. The fact that the Council was able to retain two consultants prepared to give evidence in its case does not alter that. The circumstance that the Council’s prospects might be described as “reasonable,” in the sense of being fairly arguable, is relevant for the purposes of s 457(2)(d), but it neither provides an immunity from an adverse costs order nor does it render irrelevant a consideration of the relative strengths of the cases (and a party’s knowledge of that). As noted, the considerations in s 457(2) do not limit the matters to which the Court may have regard.
Fourthly, the fact that the applicant had a strong case for approval must have been obvious to the Council. In that regard:
(i) the decision to refuse the development application was made contrary to advice. As observed in the reasons for judgment:[20]
[20]at paragraph [9].
“The Sunshine Coast Regional Council refused the development application on 28 March 2013. That decision was contrary to the “Delegated Report”[21] of its planning officer, who considered that there were sufficient grounds to overcome conflict with the Planning Scheme. In the course of assessing the application, the Council also retained and received advice from an independent and experienced economist Mr Michael McCracken, who concluded:[22]
[21]Exhibit 2 volume 2 page 284.
[22]Exhibit 2 page 283, although in expressing that view he did not analyse the nature and extent of conflict.
‘… on balance, the net community benefits likely to accrue to the Noosa region from the development of the proposed Masters within the Noosa Business Centre, are likely to outweigh any conflicts that may exist with the Planning Scheme.’”
(ii) Whilst the Council was able to retain experts to give evidence in the appeal, even their preliminary views did not suggest a strong case for the Council. On 14 June 2013, Mr Adamson, the town planner engaged to give evidence advised the solicitors for the Council that:[23]
[23]Exhibit 30 page 234.
“31. Given all of the above, I am of the opinion that the proposed development is in conflict with the planning scheme, however the degree of conflict is moderate at best and not significant…”
Mr Sykes’ file note of his conversation with Mr Norling of 7 June 2013 not only contains the passage extracted earlier in relation to impact, but also the following on planning:[24]
[24]Exhibit 30 page 225.
“2. On planning, he thought the proposal was generally supportive of the business centre as a principal centre for Noosa and a reasonable interface with the industry land to the west. He referred to precincts B3 and E5 and there was some degree of consistency of uses.”
and the following on need:[25]
[25]Exhibit 30 page 225.
“3. On need, Jon takes a contrary view to Forrester and Duane in that he does not regard Gympie (who have just approved a Bunnings) as in the trade area and refers to the DEOs supportive of this being within the old Noosa Shire boundaries and perhaps some in the northern part of Peregian Springs, so he is offside with the applicant and Foresight on that which means 70k rather than 140K catchment. Given the Bunnings in Eumundi-Noosa Road is approved and operating, while there is some benefit of greater choice to consumer and service, he regards need at the minor level.”
In short Mr Adamson’s preliminary advice was that the degree of conflict with the Planning Scheme was “moderate at best and not significant,” whilst Mr Norling’s preliminary advice was that there was only a minor level of need, but no impact reason for refusal and some positive effects from a planning perspective (although on 11 June Mr Norling suggested adding issues relating to the catchment area and adequacy of the population base).
(iii) Subsequently, in the joint report, Mr Norling, whilst disagreeing with Mr Duane about the level of need for the proposed Masters, agreed that the proposal, far from adversely impacting on the hierarchy of centres, would:[26]
[26]Exhibit 3, page 58 paragraph 112.
“positively contribute to the centre hierarchy rather than negatively impacting upon it for the following reasons:
(a) The subject site is located within an existing centre.
(b) It would contribute to the Shire Business Centre being the business and employment focus of Noosa.
(c) It would cement the Shire Business Centre as the highest order centre in Noosa.
(d) It would ensure the long term viability of the Shire Business Centre as the principal business and retail centre in Noosa.
(e) It would diversify the breadth of business activities in the Shire Business Centre by adding a large home improvement store.
(f) Very few impacts would be directed to other centres, with the majority of impacts directed to individual traders located within industrial zoned lands.
(g) Centres beyond the trade area would not be impacted to any significant degree, particularly given population growth within close proximity to the majority of those stores.”
and[27]
[27]Exhibit 3, page 59 paragraph 117.
“Any possible closures of other facilities would be made good by the development of the Masters Hardware store providing a greater range and choice within the market.”
(iv) On 29 July 2013 the Council’s solicitor gave advice, in part, as follows:[28]
[28]Exhibit 30 page 235.
“I confirm previous advice that I do not regard Council’s prospects in this matter as strong and this view is shared by counsel.
Our economist’s view is that the impact on established traders is not of such an order as to justify refusal while there is some public benefit in further competition and the provision of retail services, if the proposed Masters proceeds.
Our planner sees the conflict with the scheme as at the moderate level. The most direct conflict arises with the showroom in Precinct E5, where it is an inconsistent use. However, hardware is a consistent use in both precincts and the garden centre is consistent in B3 where it is located. Our economist does not agree that the proposal in any way compromises the further development of land in the business centre for commercial/employment opportunities and both experts agree that the proposal represents a good outcome in terms of the transition between the industrial land in the west and the business centre.
…
Counsel considered our strongest argument may be that the proposal conflicts with the desired environmental outcome 3.1.3(b) because, if approved, this proposal, together with the nearby Bunnings, will provide a level of retail consistent with a wider catchment than is envisaged by the scheme and is therefore in conflict with the planned hierarchy of centres. In our counsel’s view this is an arguable point, but we are concerned that the evidence which would be led at trial, may not confirm the use by the public of the broader catchment upon which this argument depends.
If the Council proceeds to trial, in my view, it has an arguable case but it is more likely to lose the case than to win.”
(v) On 20 December 2013, Senior and Junior Counsel provided a joint opinion on prospects which concluded that:[29]
[29]Exhibit 30 page 242.
“29. On balance, it is our opinion that Council has reasonable but not good prospects that the Court will uphold its decision and refuse the proposed development. This is largely because:
(a) the community will receive the benefit of increased choice, convenience and competition were the proposed development to be approved; and
(b) to the extent the Court finds that there is limited or even insufficient need for the Masters Home Improvement store, this will only really impact on the profitability of Bunnings and Masters, both of which are organisations which can afford to operate on lower profit margins given the size of the organisations – overall, therefore, the community may be seen to benefit from the choice and competition without net loss of facilities and in a manner which, while involving some conflict with the Noosa SBC provisions, will in fact reinforce the intended role of that centre in the centres hierarchy.”
Fifthly, a mediation was conducted in this matter. The Council was represented by a person with authority to recommend resolution of the appeal. An agreement was executed on 24 July 2013, which saw the Council’s representative agreeing to recommend that the Council resolve to support an approval of the proposed Masters development, subject to the deletion of the proposed showroom component (which was the smaller and ultimately uncontroversial component). The Council had until two business days after its August meeting to confirm its agreement. Notwithstanding having been warned about its limited prospects, the Council, at the relevant meeting, decided not to settle on that basis, but to continue to resist the appeal.
The decision not to settle in accordance with the recommendation of its own representative had obvious potential costs implications. Section 457(4) provides:
“(4) Despite subsection (1), if—
(a) early in a proceeding the parties to the proceeding participate in a dispute resolution process under the ADR provisions or the Planning and Environment Court Rules 2010; and
(b) the proceeding is resolved during the dispute resolution process or soon after it has been finalised;
each party to the proceeding must bear the party’s own costs for the proceeding unless the court orders otherwise.”
Unsurprisingly therefore, the mediation agreement included a term that each party was to bear their own costs. The Council decided to pass up the opportunity to resolve the appeal, in which it did not (and must have known that it did not) have good prospects, at a time when it would have been protected from an adverse costs order.
None of the above is to suggest that the Council acted improperly in deciding to proceed to hearing or that the Council’s lawyers acted unethically in putting its case. The Council is not obliged to act in the way recommended to it or to abandon an arguable but weak case. There was no suggestion that the Council’s case should be regarded as frivolous or vexatious and costs were not sought on an indemnity basis. It must be remembered however, that a costs order is generally compensatory rather than punitive.
I acknowledge the nature of the Council’s interest in the proceeding (discussed earlier). I accept that the issues litigated by the Council were bona fide matters of town planning relevance and public interest. It supported its case by evidence from independent professional expert witnesses. It had a case which (subject to the qualifications discussed earlier) was within the bounds of arguability (a matter confirmed by the legal advice it obtained) and that its case was generally conducted in a reasonable manner, given the issues upon which it relied. I have given weight to those matters.
I have however, also had regard to the other matters to which I have referred, particularly the appellant’s success, the strength of its case and the corresponding weakness of the Council’s case and the circumstance that that was readily apparent in the context of the advices and warnings the Council received, not just when the development application was refused contrary to advice, but including at the time it chose not to accept a settlement proposal recommended by its own representative at the mediation (at a time when, had the proposal been accepted, it would have been protected from an adverse costs order) and at all material times thereafter. On balance, the decision by the respondent to put the appellant to the expense of vindicating its strong position by a hearing (which it successfully did) justifies, as a matter of fairness in the particular circumstances of this case, an order that the respondent pay the successful appellant’s costs, notwithstanding the matters which were urged on the respondent’s behalf.
It was pointed out, on behalf of the respondent, that some time and expense was incurred on issues about which the Court ultimately found in favour of the position adopted by the Council. That is particularly so with respect to the appellant’s contention that there was no conflict with the Planning Scheme (although the Council was not successful on all the planning arguments). As was submitted for the appellant, that does not mean that the Council was successful, in any measure, in the appeal. The appellant ultimately obtained the relief it had sought. Senior Counsel for the appellant did not however, cavil with the proposition that the costs order could be moderated to some degree to take account of the fact that some time and expense was involved in the appellant’s unsuccessful attempt to deny a level of conflict and I consider that to be an appropriate course in this case. It is impractical to attempt a precise calculation of the extent of moderation.[30] The planners produced only brief statements of evidence in addition to their joint report. The town planning testimony occupied only approximately half of day three of the hearing.[31] Neither the planning evidence nor the submissions of the parties were limited to whether there was conflict in the respects as found. A reduction of the costs by 15 percent is, in my view, an appropriate moderation in the circumstances.
[30]cf YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No 2) supra at para [31].
[31]from 12:35p.m.
The respondent is to pay 85% of the appellant’s costs of the appeal.
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