Johnson v Brisbane City Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Johnson v Brisbane City Council & Ors [2014] QPEC 38

PARTIES:

DAVIN LEE JOHNSON
Appellant

v

BRISBANE CITY COUNCIL
Respondent

and

BRUCE WILLIAM HAM
First Co-Respondent by Election

and

CENTRAL SEQ DISTRIBUTOR-RETAILER AUTHORITY (TRADING AS QUEENSLAND URBAN UTILITIES)
Second Co-Respondent by Election

FILE NO:

No. 2003 of 2013

PROCEEDING:

Application for Costs

DELIVERED ON:

18 July 2014

DELIVERED AT:

Southport

HEARING DATE:

4 July 2014 at Brisbane

JUDGE:

Judge C.F. Wall Q.C.

ORDERS:

1.        The appellant’s application for costs filed on 20 April 2014 is dismissed.

2.        The appellant pay the first co-respondent by election’s costs of and incidental to the application to be assessed on the standard basis unless agreed.

CATCHWORDS:

Costs – application by appellant that submitter co-respondent pay appellant’s costs from a particular date – whether co-respondent thereafter acted “unreasonably” or raised issues not “properly arguable” or “lacking any substance” – whether issues raised by co-respondent were “bona fide matters of town planning relevance”.

LEGISLATION:

Sustainable Planning Act 2014, Section 457
Planning and Environment Court Rules 2010, Rule 22

CASES:

Solomon Services Pty Ltd v Woongarra Shire Council [1988] 2 Qd R 202
J Henry & Ors v Douglas Shire Council & Ors [1987] QPCR 133
Faden Pty Ltd v Goondiwindi Shire Council [1987] QPLR 250
Cox & Ors v Brisbane City Council & Anor (No.2) (2014) QPELR 92

COUNSEL

Mr D.D. Purcell – for the Appellant
Mr J. Dillon – for the First Co-Respondent by Election

SOLICITORS:

McInnes Wilson Lawyers – For the Appellant
p & e law, Maroochydore – for the First Co-Respondent by Election

Introduction

1. This is an application by the appellant that the first co-respondent by election (Ham) pay the appellant’s costs of and incidental to the appeal.

1. At the hearing of the application the appellant limited the costs sought from Ham to those incurred between 17 December 2013 and 4 April 2014.

1. The appellant relies in particular on s 457(2)(a), (d) and (i) of the Sustainable Planning Act 2009 (SPA) which are as follows

457 Costs

(2)In making an order for costs, the court may have regard to any of the following matters—

(a)         the relative success of the parties in the proceeding;

(d)whether a party commenced or participated in the proceeding without reasonable prospects of success;

(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;

History

1. This is substantially taken from Mr Dillon’s Outline of Submissions on behalf of Ham and I did not understand there to be any dispute about it.

(a)On 23 February 2013 the appellant applied to the respondent for a development permit for an impact assessable material change of use for four multi-unit dwellings and for a preliminary approval…