Johnson v Brisbane City Council
[2014] QPEC 38
•18 July 2014
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: Johnson v Brisbane City Council & Ors [2014] QPEC 38 PARTIES: DAVIN LEE JOHNSON
Appellantv
BRISBANE CITY COUNCIL
Respondentand
BRUCE WILLIAM HAM
First Co-Respondent by Electionand
CENTRAL SEQ DISTRIBUTOR-RETAILER AUTHORITY (TRADING AS QUEENSLAND URBAN UTILITIES)
Second Co-Respondent by ElectionFILE 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 22CASES: 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 92COUNSEL Mr D.D. Purcell – for the Appellant
Mr J. Dillon – for the First Co-Respondent by ElectionSOLICITORS: McInnes Wilson Lawyers – For the Appellant
p & e law, Maroochydore – for the First Co-Respondent by Election
Introduction
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.
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.
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
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 for building work in respect of land situated at 19 and 19A Victoria Crescent, Toowong.
(b)The development application consisted of a series of plans, and a brief town planning report but no other supporting reports.
(c)The application as lodged was deficient in that it lacked appropriate supporting information and failed to demonstrate compliance with relevant provisions of the planning scheme in various significant respects.
(d)On 4 August 2011 the Council issued an extensive information request.
(e)On 2 July 2012 the appellant’s consultants informed the Council that the appellant “had to make their application a lower priority” and did not intend to supply the requested material, although the appellant had re-engaged the designer to resolve outstanding matters.
(f)On 25 September 2012 the Council wrote to the appellant’s consultants. The letter made various observations, including the following:
(1)Although some amended plans had been provided, there were “still some significant items that still need to be addressed further.”
(2)The proposal was in a character area and therefore limited by acceptable solutions of the LMR Code to 8.5m in height, 2 stories and 0.5 (50%) gross floor area, with the performance criteria requiring the development to be consistent with the low density nature of the locality. The proposed development was 4 stories, exceeded 9.5m in height, and had a gross floor area of 0.78 (78%).
(3)Insufficient landscaping information had been provided.
(4)Setbacks were not adequate.
(5)The significant cut across the site resulted in “extreme use of retaining walls, with severe impacts on visual amenity and liveability.”
(g)In or around September 2012 the proposed development was publicly notified. The material shows that at least 27 submissions were made objecting to the proposed development. The objectors raised various grounds of concern, including the following:
(1)the excessive height, bulk, and gross floor area, coupled with insufficient landscaping and setbacks meant that the proposed development was inconsistent with the character of the area, and in conflict with the planning scheme;
(2)the proposed internal traffic arrangements were inadequate;
(3)the adverse external traffic impacts on the safety and efficiency of Victoria Crescent, particularly in light of the constrained nature of Victoria Crescent;
(4)the lack of sufficient supporting reports and information, including the lack of a supporting traffic report; and
(5)an immediate neighbour to the proposed development expressed concerns about the safety and stability of her property during and after construction.[1]
[1] See Ham affidavit, filed 4 June 2014, pp 233-236 for his objection
(h)On 14 March 2012, after public notification of the development application had occurred, the appellant provided further information to Council and proposed changes to the proposed development. However, the proposed development remained in conflict with relevant acceptable solutions and performance criteria.
(i)On 22 April 2012 the Council again requested the appellant to address important issues relating to height, gross floor area, landscaping and retaining walls by providing further information and by amending the design of the proposed development.
(j)On 8 May 2013 the Council issued a decision notice refusing the development application because it lacked sufficient detail and conflicted with the planning scheme. The decision notice summarised the substance of the conflicts as follows:
“The conflicts relate to the height, bulk and scale of the proposal and its inconsistency with Character Residential nature of the locality. In addition, conflicts arise with the proposal’s inconsistency with the established landscape character of the area. The proposal does not comply with Brisbane City Plan…”
(k)On 5 June 2013 the appellant appealed the Council’s refusal of the development application (court document 1).
(l)Ham joined the appeal as a self-represented co-respondent by election (court document 4).
(m)The parties commenced without prejudice negotiations on 30 August 2013.
(n)On 26 September 2013 the appellant filed an application for directions (court document 5) returnable on 10 October 2013.
(o)The directions hearing occurred on 10 October 2013 and orders were made directing the parties to attend a without prejudice conference chaired by the Planning and Environment Court ADR Registrar (court document 7).
(p)A first without prejudice ADR conference occurred on 17 October 2013.
(q)A second without prejudice ADR conference occurred on 30 October 2013.
(r)On 4 November 2013 the appellant filed an application for directions (court document 9) returnable on 18 November 2013.
(s)On 11 November 2013 the Court ordered Ham to identify whether he contended that the application should be approved subject to conditions, and the matters that should be addressed by conditions, or whether the application should be refused (court document 10). The order also provided for the preparation of draft conditions and the identification of the ambit of the dispute concerning the conditions.
(t)On 18 November 2013, Ham, by email, notified the parties that the development should be approved subject to conditions, and identified matters which should be addressed by conditions.[2]
[2] Gallienne affidavit filed 29 April 2014, p 36
(tt)On 17 December 2013 the Council sent to the parties draft conditions, final amended plans and TMR concurrence agency response. This is the starting date for the costs claimed by the appellant.
(ttt)On 7 January 2014 the appellant consented to the Council’s “draft approval package being included in final order”.
(tttt)On 8 January 2013 Ham proposed a number of additional conditions.[3] On 9 January 2012 the appellant advised Ham that he did not consent to his “proposed changes to the draft conditions”.
[3] Gallienne affidavit, pp 112-116
(u)On 10 January 2014 the Court made orders identifying the remaining issues in dispute and setting a hearing date for the appeal. The issues in the appeal were limited to the imposition of conditions concerning the following matters:
(1)The preparation of a construction management plan identifying and managing hazards and risks concerning:
(i)adverse impacts upon water supply standards and fire-fighting water pressure and volume in Victoria Crescent;
(ii)traffic impacts upon pedestrians, cyclists and vehicles caused by construction and subsequent elevated traffic levels given the physical constraints of Victoria Crescent; and
(iii)damage to the neighbouring residence at 21 Victoria Crescent which might be caused by the excavation and construction activity.
(2) The imposition of conditions dealing with traffic to:
(i) provide additional onsite car parks;
(ii) increase the width of the driveway;
(iii)implement “no standing” signs adjacent to the proposed development.
(uu)These matters were issues 1 and 6 raised by Ham on 8 January 2014.[4] The other issues raised by him had, by 10 January 2014, been resolved.
[4] See para (tttt) hereof
(v)The Council then asked the second co-respondent to consider whether it wanted to join the appeal.
(w)On 21 January 2014 the second co-respondent applied to join the appeal (court document 12).
(x)On 24 January 2014 the Court made orders joining the second co-respondent to the appeal, and providing for notification and meetings of experts and hearing of the appeal (court document 15).
(y)…
(z)…
(zz)On 6 February 2014 the Court ordered that Ham be permitted to meet with the parties’ nominated experts for the limited purpose of assisting the experts to fully understand his views about the disputed issues identified in the Order made on 10 January 2014.
(aa)In February 2014 the experts met and produced joint reports concerning the issues of water supply, traffic, and civil engineering.
(aaa)The joint report of the appellant’s and Council’s traffic engineers recommended the “inclusion of a condition requiring the preparation of a detailed Construction Management Plan” dealing with traffic issues during construction.[5] In respect of the water issues raised by Ham the experts did not agree with him and he accepted their view and conceded the issue.
(bb)The hearing dates for the appeal were vacated at the next review of the appeal on 28 March 2014 (court document 18), and on 4 April 2014 a changed version of the proposed development was approved by the Court by consent (court document 21).
[5] Gallienne affidavit, p 160
Discussion
The appellant submits that he achieved “overall success” in the appeal against opposition by Ham, that Ham acted unreasonably in raising new or expanded issues and failing on others, in particular, the water issue and in ignoring Court rules in relation to expert evidence.
The “new issues” referred to included those referred to in para (u)(1)(i) and (iii) hereof. The “expanded issues” included those referred to in para (u)(1)(ii) and (2) hereof. I agree with Mr Dillon that it would appear that “the traffic issues raised in the appeal were considered by the parties experts for the first time during the joint meeting process.”[6] Any other issues earlier raised by Ham on 8 January 2014 were resolved relatively quickly.
[6] Outline of Submissions, para 30(f)(3)
I also agree with Mr Dillon that when draft condition 13 is compared with final condition 13 in relation to construction traffic and geotechnical issues, that Ham “achieved substantial success”.[7] The same applies to final condition 18 which was not one of the draft conditions.
[7] Outline of Submissions, para 30(e)
The appellant concedes that ultimately issues raised by Ham resulted in amendments to the draft conditions but submits that these amendments were only “narrow”. [8] I think it is unfair to Ham to categorise them in such a minimalist way. There are quite significant differences between draft condition 13 and final condition 13. The latter is far more detailed than the former. Final condition 18 was not in the draft conditions. Ham did in fact succeed on some of the issues he raised or as a result of raising them, conditions were varied from their original draft or added.
[8] Written Submissions, para 82
Ham’s nomination of himself as an “expert” in respect of engineering, traffic and water issues on 29 January 2014 (he is a RAAF Wing Safety Standards Officer), whilst inconsistent with r 22 of the Planning and Environment Court Rules 2010, was, in my view, innocent and resulted in the order made on 6 February 2014 which permitted him to meet with the experts which seemed to be the real basis of his nomination of himself as the expert.
The fact that Ham did not have his own experts on any of the issues he raised is said to be a reason for ordering him to pay costs “because he failed to present any evidence in support of any of the disputed issues”.[9] Notwithstanding the absence of his own experts he did nevertheless succeed on some of the issues he raised.
[9] Written Submissions, para 86(d)
In relation to the water issues I do not consider Ham acted unreasonably in raising them in the first place. His concern seems to have been based on the experience he and other residents of Victoria Street had with water pressure.[10]
[10] Issue no. 4, Gallienne affidavit, p 115
It is important to recognise, as Mr Dillon submits, that “the development application lodged by the appellant was deficient in that it lacked detailed material” and “the proposed development was in serious conflict with the planning scheme, representing a significant over development of the site”.[11] No traffic report accompanied the development application. Mr Dillon referred to relevant provisions of the planning scheme.[12] I also agree that over a relatively short period of time (5 June 2013 – 4 April 2014) the disputed issues were resolved and that “the development approved by the Court was significantly changed from the original development application” and that Ham achieved a degree of success concerning the issues raised by him.[13] Mr Dillon referred to the fact that “the appellant ultimately accepted significant changes to the development application to secure an approval, including reductions in the bulk and scale, gross floor area and height of the development”.
[11] Outline of Submissions, para 30(a)
[12] See T1-58,59 and Ham affidavit filed 4 June 2014, pp 68, 71, 75 and 80. See also the Council’s Decision Notice, Ham affidavit, p 252
[13] Outline of Submissions, para 30(b) and (d)
The appellant submits that Ham should pay the appellant’s costs incurred after the Council sent the parties draft conditions[14] because the Council was then prepared to approve the appellant’s application with those conditions and Ham caused the appellant to waste time and money arguing about them, but such a submission ignores the part Ham played in securing the conditions subsequently agreed to in the Court’s order of 4 April 2014 and which are different to the Council’s draft conditions.
[14] See para (tt) hereof
The second version of condition 13 which was attached to the letter to Ham from the appellant’s solicitors dated 1 November 2013 is relied on by the appellant as a Calderbank type letter but it does not represent the final version of condition 13 and could not be said to constitute an offer to settle to the extent necessary to influence a decision on costs. Alternatively it may be, as Mr Dillon submits, part of ongoing without prejudice negotiations endeavouring to resolve the matter in which case it cannot be relied upon.
Result
In my view the issues raised by Ham were “properly arguable”[15] and he did not act “unreasonably” in raising them; it could not be said that they “lacked any substance”.[16] They were “bona fide matters of town planning relevance”.[17] The extent to which he succeeded on the issues raised by him militates against the appellant’s application.
[15] See Solomon Services Pty Ltd v Woongarra Shire Council [1998] 2 Qd R 202 and J Henry & Ors v Douglas Shire Council & Ors [1987] QPCR 133 at 141-142
[16]Faden Pty Ltd v Goondiwindi Shire Council [1987] QPLR 250
[17]Cox & Ors v Brisbane City Council & Anor (No.2) (2014) QPELR 92
No sufficient basis has been advanced to warrant an order such as the appellant seeks and his application must be dismissed.
Should this be the result Ham asks that the appellant pay his costs of the application. The appellant has failed completely in his application and I consider costs should follow the event.
Orders
1. The appellant’s application for costs filed 20 April 2014 is dismissed.
2. The appellant is to pay the first co-respondent by election’s costs of and incidental to the application to be assessed on the standard basis unless agreed.
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