Wheldon v Logan City Council

[2014] QPEC 45

[2014] QPEC 45

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E No. 2930 of 2014

DAVID WHELDON and ANOTHER  Applicants

and

LOGAN CITY COUNCIL and ANOTHER  Respondents

BRISBANE

3.12 PM, FRIDAY, 15 AUGUST 2014

JUDGMENT

CATCHWORDS: 

 PLANNING AND ENVIRONMENT – Proceedings for declaratory relief – where negotiated decision notice invalid and set aside, by consent, on the first return date – costs – fault that of the Council – whether costs should be paid by developer and/or Council

COUNSEL: 

SOLICITORS:

M Williamson for the applicants

M McDermott (solicitor, Corrs Chambers Westgarth) for the first respondent

R Litster QC for the second respondent

Thynne & Macartney for the applicants

Corrs Chambers Westgarth for the first respondent

Clayton Utz for the second respondent

HIS HONOUR:   This was an originating application for declaratory and other relief in order to set aside a negotiated decision notice.  The negotiated decision notice was dated the 29^th of May 2014.  It was to supersede an initial decision notice, which was dated the 8^th of April 2014, in respect of the decision that had been made on the 4^th of April 2014. 

The development application to which the decision notice and the negotiated decision notice related was a code assessable application.  The decision notice set out the Council’s finding that the proposal conflicted with parts of the relevant code, but that there were sufficient grounds to approve notwithstanding that conflict.  The grounds included that the approval, as conditioned, would, amongst other things, provide a link to the land of the applicants in the present proceedings.

Subsequently to receipt of the original decision notice, the second respondent made representations about certain conditions. Those representations were, to a large extent, accepted and resulted in the negotiated decision notice, which deleted certain conditions. Those conditions included conditions which were related to the reasons that the Council gave for approval notwithstanding conflict. Notwithstanding that, the negotiated decision notice claims that the decision does not conflict with any of the matters mentioned in section 326 of the Sustainable Planning Act, and therefore the reasons for a decision approving notwithstanding conflict were “not applicable”.

It is difficult to see how that proposition can stand with the findings that were recorded in the decision notice.  As counsel for the applicants in this proceeding pointed out, section 363(2) requires that, before the assessment manager agrees to a change, it must consider the matters it was required to consider in assessing the application, to the extent the matters are relevant.

The first and the second applicant brought this originating application on the 31^st of July 2014.  Today is the first return date of that application.  Upon the first return date, each of the respondents accepted that the decision notice ought be declared invalid and ought be set aside.  The respondents then requested that ancillary orders be made to deal with how the matter was to progress before the Council from this point. The applicants agreed to those ancillary orders. 

The remaining controversy concerns costs.  The applicants seek their costs of the proceedings against both the first and second respondents. 

The relevant costs regime is that which is provided for in section 457 of the Sustainable Planning Act. That provision confers upon the Court a broad discretion in cases such as this. That discretion is not to be approached on the basis that there is an ordinary order that costs follow the event. Section 457(2) sets out a number of matters which the Court may have regard to. They include the relative success of the parties in the proceeding but also include other matters, including whether a party has acted unreasonably in the proceeding.

The error in this case was clearly that of the Council.  No blame can be attributed to the second respondent for making representations about the conditions.  Although it did not accept that there was a problem when the solicitors for the applicants wrote to the solicitors for the second respondent prior to instituting proceedings, it is clear that, very soon thereafter, they acknowledged that the Council had made an error by indicating their consent to the orders that have been made today.  That consideration seems to have been prompted by the applicants in these proceedings providing a draft order for directions towards the determination of the matter.  As I’ve indicated, the response was one of consenting to the substantive relief sought in the proceedings.  In the exercise of discretion, I would not order costs against the second respondent in the circumstances. 

The position of the first respondent is different.  The error was its, and that error is the cause of these proceedings.  Further, it was pre-warned in a letter from the applicants’ town planners dated the 26^th of May 2014 that:

The conditions imposed on the development approval in relation to Jedfire Street and Jedfire Road are important, if not essential, to Council’s decision to grant approval. 

We note section 14 of the subject application’s decision notice, which lists the reasons for Council’s decision to approve the proposal despite its conflict with the current planning scheme.  In our view that approval on MCUC/241/2013 is contingent on items (3), (4), (5) and (7) being attached to the land and approval.

Notwithstanding that pre-warning, its decision was made a few days later without apparent consideration of the relevant matters.

I acknowledge that it too has, early in the proceedings, acknowledged the error and consented to the orders.  However, in the circumstances, I think it is appropriate that there be an order that the first respondent pay the applicants’ costs of the proceedings. 

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