The Body Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council (No. 2)

[2014] QPEC 74

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

The Body Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council & Ors (No. 2) [2014] QPEC 74

PARTIES:

THE BODY CORPORATE FOR THE VILLAGE OF LANGLER DREW COMMUNITY TITLES SCHEME 16700
(Applicant)

and

BRISBANE CITY COUNCIL
(First Respondent)

and

WOODS PROPERTY DEVELOPMENTS PTY LTD ACN 179 005 379 AS TRUSTEE UNDER INSTRUMENT NO. 703420894
(Third Respondent)

and

TREGASKIS INVESTMENTS PTY LTD ACN 079 030 514 AS TRUSREE UNDER INSTRUMENT NO. 079 005 379
(Fourth Respondent)

and

ANDREW GORDON WOODS
(Fifth Respondent)

and

CAMERON WILLIAM TREGASKIS
(Sixth Respondent)

FILE NO:

1313 of 2014

PROCEEDING:

Application for costs

HEARING DATE:

12 December 2014 at Southport

DELIVERED AT:

Southport

DELIVERED ON:

Order made 12 December 2014, reasons delivered 18 December 2014

JUDGE:

Judge C F Wall QC

ORDER:

Applicant to pay Third, Fourth, Fifth and Sixth Respondent’s costs of the preliminary hearing and this application to be assessed on the standard basis unless agreed

LEGISLATION:

Sustainable Planning Act 2009. Section 457

CASES:

Altitude Corp Pty Ltd v Isaac Regional Council (No. 2) [2014] QPEC 55
Leichhardt M.C. v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29
Cox & Ors v Brisbane City Council (No. 2) [2014] QPELR 92

CATCHWORDS:

ENVIRONMENT AND PLANNING – TOWN PLANNING – costs – application for declaratory relief – distinguished from merits appeal

COUNSEL:

Mr Mitchel Batty for the Applicant

Mr C. Hughes QC and Mr M. Williamson for the Third, Fourth Fifth and Sixth Respondents

SOLICITORS:

Norton Rose Fulbright Australia for the Applicant

McCullough Robertson Lawyers for the Third, Fourth, Fifth and Sixth Respondents

Introduction

1. This is an application by the Third, Fourth, Fifth and Sixth Respondents that the Applicant pay their costs of the preliminary hearing of certain issues and of this application.

1. On 12 December 2014, after hearing argument from both sides, I ordered that the Applicant pay the costs of the Third, Fourth, Fifth and Sixth Respondents of and incidental to the preliminary hearing heard on 26 and 27 June 2014 and this application for costs to be assessed on the standard basis unless agreed and said that I would give my reasons later.

1. These are my reasons.

1. I gave judgment on the preliminary issue as to whether the subject building was 8 storeys high or more than 8 storeys high on 11 September 2014.[1]  The Respondents succeeded and the Applicant failed.

   [1] [2014] QPEC 054

1. Since then the Applicant has withdrawn the balance of its claim for declaratory relief (the bulky building point and the overlooking the neighbours point).

Legislation

1. Costs are dealt with in s 457 of the Sustainable Planning Act 2009 which provides, so far as is relevant

“457    Costs

(1)Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.

(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;

(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;

(i)whether a party has acted unreasonably in the conduct of the proceeding”

Reasons

1. In my view the Respondents are entitled to an order for costs in their favour for the following reasons.

1. They succeeded entirely in the preliminary hearing. I agree that there is no presumption in s 457 that costs should ordinarily follow the event but it is clearly a very relevant factor to take into account.

1. The Applicant’s claim was for declaratory relief.  It was not a merits hearing.  This fact is relevant in considering decisions on costs referred to by the Applicant which all involved merits appeals.  Mr Gore QC explained this aspect in his opinion given to the Applicant, as follows

“The Court is not concerned with the merits of the decision to approve the development application, but rather with its legal validity.  What needs to be demonstrated is some legal error in the decision making process.  This means that, as a general rule, it is more difficult to succeed in declaration proceedings, than it is with an appeal on the merits.”

1. The Applicant was unable to demonstrate any legal error in the decision making process.

1. There were, in my view, no reasonable prospects of the Applicant succeeding.  In his opinion Mr Gore said that, on balance, it was his opinion that storey no. 10 was a storey (I found it wasn’t) and that storey no. 1 was not (I agreed).

1. At the end of his opinion he rated the prospects of success for each point as follows

Storey No. 10                45-55%

Storey No. 1                  25%

1. I would not regard 45-55% for the 10 storey point as a particularly encouraging estimate of prospects of success in an application for declaratory relief.  I would not regard it as an opinion that the Applicant had “reasonable prospects of success” as Mr Timbs advised the Applicant, or that “there was a reasonable basis for a party to initiate proceedings” as was submitted by Mr Batty.  I recognise that the Applicant had only to succeed on either storey no. 10 or storey no. 1 to establish a building of more than 8 storeys high.  The fact that the 10 storey point may have been arguable at best and seriously pursued does not, in my view, outweigh the other considerations supporting the orders that I made.

1. The opinion expressed by Rackemann DCJ in Altitude Corp Pty Ltd v Isaac Regional Council (No. 2) [2014] QPEC 55 at [25] did not equate “reasonable prospects of success” with “fairly arguable” simpliciter but with “a fairly arguable case supported by appropriate evidence” and was said in the context of a merits appeal not an application for declaratory relief.  In his written submissions (para 44) and notwithstanding his earlier reference to what Rackemann DCJ said in Altitude, Mr Batty put the Applicants case no higher than “arguable”.  It was never supported by “appropriate evidence”.

1. During the hearing, in relation to the 10 storey point, Mr Gore placed much reliance on the decision in Leichhardt M.C. v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 whilst conceding that the physical characteristics of the two buildings were quite different. In fact, in his opinion, after saying that

“in a context such as the present, the word ‘above’ is itself important”

he conceded in relation to the NSW decision that

“factually the present case is not as obvious…”

1. This highlights the pitfalls faced by an applicant for declaratory relief who is effectively relying on a determination of factual rather than legal issues as the basis for relief.

1. Leichhardt M.C. v Daniel Callaghan Pty Ltd (supra) was a decision on its own facts and is not necessarily an authority of general or wider application about what does or does not amount to a storey.   In fact Glass JA said at page 35

“Architectural ingenuity can produce a numberless variety of designs for buildings occupying different levels, particularly when applied to rising ground.”

1. Also as I pointed out in my judgment, the definition of storey in that case was quite different to the definition in the present case.

1. It should come as no surprise to the Applicant that it has to pay the Respondent’s costs.  The Applicant’s body corporate advised unit owners as follows

“Winning a court case is not guaranteed.  We may lose and in this event we may be ordered to pay the costs of the other parties.”

1. The Applicant commenced and pursued the application as if it was a merits appeal capable of being compromised or resolved as such rather than an application for declaratory relief  relating to the “legal validity” of the council’s decision and the need to demonstrate “some legal error in the decision making process”. 

1. I agree with the submissions of the Respondents that

“… the proceeding was commenced to achieve a… reduction in the height of the approved development against which it had no statutory right to objection… The proceeding was used by the Applicant as a means of securing leverage over the Respondents in an attempt to have them agree to change the development.”

1. This is apparent from what the Applicant’s body corporate said to unit holders and from correspondence between the solicitors for the respective parties.  The body corporate said

“The developer was not required to give any public notice of the application and accordingly we had no opportunity to make submissions to the council…  If we commence proceedings (the developer) will be required to mediate with us and it is possible that a negotiated outcome could be reached without the expense of a trial.”

1. Before the proceeding was commenced the Respondent’s solicitors advised the Applicant’s solicitors on 7 April 2014 that their

“suggestion that the approved building consists of more than 8 storeys is wrong and misguided…”

and indicated they would seek costs against the Applicant if proceedings were commenced.  The Applicant also pursued merits issues in the correspondence exhibited to the affidavit of Vincent Corry filed 17 October 2014.

1. The fact that the Applicant had, to quote Mr Batty,

“exhausted all other opportunities to have it’s concerns with respect to the proposed development ventilated”

does not, with respect, constitute sufficient reason for attempting to ventilate factual issues by means of an application for declaratory relief.

The Applicant’s submissions to the effect that the concept of storeys is recognised as a “surprisingly difficult concept”, that the Applicant “received no commercial benefit from commencing the proceeding” and may have “used its best endeavours to advance the matter expeditiously and not cause unnecessary expense and delay” are not sufficient to outweigh the other factors supporting an order for costs in favour of the Respondents.

1. By letter dated 25 September 2014, the Respondents made an offer to settle the issue of costs.  Bearing in mind the prospects of success earlier opined by Mr Gore, that offer was, in my view, a reasonable one and it was, with respect, unreasonable for the Applicant to reject it.  Acceptance would also have avoided the costs of this application.  The decision in Cox & Ors v Brisbane City Council (No. 2) [2014] QPELR 92 at [22], referred to by the Applicant is predicated on the conduct of the Applicant first being reasonable in the context of a merits appeal.

Conclusion

1. It is for these reasons that the order of 12 December 2014 was made.