Ko v Brisbane City Council and Anor (No.2)

The appeal in Ko v Brisbane City Council and Anor (No.2) involves the appellant, Ko, who sought a material change of use for a multiple dwelling in an LMR zone, which was refused by the Brisbane City Council. The appellant subsequently appealed this decision, which was allowed, leading to the current proceeding regarding the allocation of costs under s.457(1) of the Sustainable Planning Act 2009 (Qld). The second respondent, who was the co-respondent in the original proceeding, now seeks to challenge the order that they pay the appellant’s costs.

The primary legal issue before the court was whether the discretion to award costs should be exercised in favour of the appellant under the relevant statutory provision. The court had to consider the circumstances of the case, including the outcome of the appeal and the nature of the proceedings. It was necessary to assess whether the appellant’s success warranted an order for the costs to be paid by the co-respondent. The court's analysis involved a review of the statutory framework and the principles guiding the award of costs in planning and environmental appeals.

In its decision, the court found that the appeal was successful and the appellant’s application for a material change of use was ultimately granted. The court noted that the co-respondent had not demonstrated any exceptional circumstances that would warrant a departure from the usual order for costs to follow the event. The court concluded that the appellant’s success in the appeal justified the exercise of the discretion to award costs in their favour. Consequently, the order made by the primary judge was affirmed, mandating that the co-respondent pay the appellant’s costs of and incidental to the proceeding from a specified date.

The final orders of the court required the co-respondent to pay the appellant’s costs of and incidental to the proceeding on and from 8 June 2018, including the costs of and incidental to the application filed on 7 September 2018. This decision underscores the importance of the statutory provisions in determining the allocation of costs in planning and environmental appeals, particularly when the outcome favours the appellant.