Shaw v Brisbane City Council

[1999] QPEC 47

IN THE PLANNING & ENVIRONMENT COURT

HELD AT BRISBANE

QUEENSLAND

[Shaw v Brisbane City Council & Anor]

[Before T.J. Quirk DCJ]

Appeal No 2789 of 1999

BETWEEN:

CLAIRE SHAW

Appellant

AND:

BRISBANE CITY COUNCIL

Respondent

AND:

MARGARET FRANCES GARDNER

Co-Respondent

JUDGMENT

Judgment delivered:              2^nd September 1999

Catchwords: Costs; power to award; Integrated Planning Act S.4.1.23.

Counsel:        Fitzpatrick;  Huston;  Hughes             

Solicitors: Paul Fallu; B.C.C. Legal Section; Connor O’Meara McConaghy                

Hearing Date(s): 2^nd September 1999  

IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
  Appeal No 2789 of 1999

BETWEEN:
  CLAIRE SHAW
  Appellant
AND:
  BRISBANE CITY COUNCIL
  Respondent
AND:
  MARGARET FRANCES GARDNER

Co-Respondent

REASONS FOR JUDGMENT -T.J. Quirk D.C.J.
  Delivered the 2nd  day of September 1999

This appeal was against the approval by the respondent of an application for

“the carrying out of building work and material change of use for the demolition of a building and the erection of a dwelling house in excess of 8.5 metres in height”

in respect of land at Taringa.

The appeal has, following certain modifications to the proposed building plan, been settled and I was asked to dispose of the appeal on the basis of a draft order submitted to me.  However in addition, the respondent by election sought an order for part of the costs which she had incurred in resisting the appeal. 

The application is made on the basis that when faced with the proposed amendments (which lowered the building’s height and, it is said, largely disposed of her concerns) she delayed unreasonably in withdrawing her opposition to the proposal and agreeing to have her appeal dismissed. 

The facts of the matter are set out in affidavit material put before me and need no lengthy discussion.  There was some confusion as to whether the appellant appreciated the extent and effect of the height reduction at a conference held in early August or whether it was not until later in the month (when certain plans were received by her on the 27th) that this became clear to her. 
In any event, as has been repeatedly noted, this Court’s power to award costs is limited and the general position is that parties to proceedings must bear their own costs (s.4.1.23(1) of the Integrated Planning Act).  Sub-section (2) of that section sets the ambit of the Court’s discretion to allow costs in certain circumstances.  In this case, attention was drawn to the following sub-paragraphs:

“(b)The Court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious.....

(i)An applicant, submitter, referral agency, assessment manager or local government does not properly discharge its responsibility in the proceedings.”

As to (b) the appellant instituted her appeal on grounds relating to concerns as to the height of the intended building and its effect upon the amenity of her adjoining residence.  It is not said that the appeal itself was frivolous and, in the light of the subsequent amendments to the proposal, this is not surprising.

The Council’s decision was made on 20 May.  The appeal was lodged on 2 July.  That she took time to consider her position to resolve any confusion in her mind as to the effect of the amendments after being faced with them in early August is not, in my view, any necessary indication of frivolity.

As to sub-paragraph (i), the argument appears to be that “responsibilities in the proceedings” includes an obligation to recognise any weaknesses in one’s case and to respond accordingly to that recognition by not pursuing the matter further if that is warranted.  Such a proposition would in my view involve too wide an interpretation of the concept of “responsibilities” as it is used in the sub-paragraph. 

The proposition may reflect the position of a party in ordinary civil litigation but here, the concept must be understood in the context of this legislation.  I would interpret the provision to refer to responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved (in those capacities) in proceedings which the Act governs.  Such an interpretation would not extend to cover the proposition put forward here.

As I have indicated I am not of the opinion that this is an appropriate case for any award of costs.