Costs under the Sustainable Planning Act 2009 awarded by the Planning and Environment Court of Queensland for a wholly unsuccessful case

In brief

The case of Donovon v Brisbane City Council & Ors (No.2) [2020] QPEC 41 concerned an application for costs by the Applicant/Second Respondent (Applicant) from the Respondent/Applicant (Respondent) to the Planning and Environment Court of Queensland in relation to a four-day hearing which occurred in March 2020. 

The Brisbane City Council (Council) did not have an active part in the application for costs. 

The Court held that the Respondent was to pay the Applicant's costs for the four-day hearing in the Court, which occurred on the 2nd to the 5th of March 2020 on a standard basis. 

Background

The Applicant and Respondent occupied adjoining lots at Dewar Terrace, Corinda, which are subject to specific building location envelopes and covenants which protect the plants and animals on the lots and, as a consequence of, required the Applicant and Respondent to share joint access arrangements to the lots. 

The Respondent in the substantive original application of 24 March 2016 sought orders from the Court to enable the Respondent to construct a two-storey building, which would involve rearranging the existing access arrangements. The Applicant opposed the proposed structure.

At the substantive hearing, which resulted in the judgment of Donavon v Brisbane City Council [2020] QPEC 9, the Respondent was vague as to the use of the upper storey of the proposed structure, and provided inconsistent descriptions of the proposed use. The Respondent, or the Respondent's legal representatives stated that the use was for a range of potential options, for storage, for various projects or hobbies, or for a final use yet to be decided. 

Costs regime under the Sustainable Planning Act 2009 applied

The Court considered that the relevant costs regime was the regime provided under the now repealed Sustainable Planning Act 2009 (SPA) and, in particular, section 457 of the SPA. The current Planning Act 2016 and Planning and Environment Court Act 2016 were not relevant for the purpose of the costs application but were nevertheless referred to by the Respondent.

Under the SPA, the costs of a proceeding, or part of a proceeding, are at the relatively broad discretion of the Court. In exercising that discretion, the Court may relevantly have regard to the following (see section 457 of the SPA as quoted at [12]):

"(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 had acted unreasonably in the conduct of the proceeding…"

The Court considered relevant common law and noted that there is no presumption that costs follow the event but that "the success or otherwise of a party in proceedings under the SPA is clearly a relevant consideration and a significant one" (at [15]).

Respondent argued against an unfavourable costs order but the Court ultimately did not accept the Respondent's submissions

The Respondent argued that the Court ought not to make a costs order against the Respondent for, inter alia, the following reasons:

1. New originating application – The Respondent could have lodged an originating application at any time from 19 May 2017, and had the Respondent done so the Court would not have had a general discretion as to costs.

2. Summary judgement – That the Applicant did not bring an application seeking summary judgement is a good indicator that the Applicant did not consider that the Respondent had no reasonable prospects of success or saw some benefit out of the continuation of the proceeding.

3. Vagueness – A determination in respect to costs would be unfair without acknowledging that the vagueness in the description of the use arose from a willingness of the Respondent to provide an outcome beneficial for the Applicant and the Respondent. 

4. Council support – The Council in a statutory pre-request notice stated that the Council was willing to support the proposed changes. 

5. Benefits – The Respondent was attempting to take steps to ameliorate the unfortunate circumstances arising from the deficiencies in access, parking and manoeuvring arrangements, therefore, limited weight ought to be given to the success of the Applicant. 

6. Failed agreement – The parties made efforts to reach an "Agreement in Principle". 

The Court addressed the Respondent's submissions and relevantly stated as follows:

7. New originating application – The Court stated that the submissions of the Respondent were sufficiently hypothesised as to not warrant any discussion. However, the Court noted that the Applicant was wholly, resoundingly and unequivocally successful, and therefore the Respondent commenced proceedings without reasonable prospects of success.

8. Summary judgement – The Court rejected the submission as the Respondent's case was not one suitable to have been summarily dismissed.

9. Vagueness – The Court stated that the vagueness existed due to the Respondent trying to formulate an end use that might have been acceptable to the Court rather than difficulty or inability in identifying the real end purpose of the proposed structure. 

10. Council support – The Court concluded that the position of the Council in the statutory pre-request response was of no material consequence as the particulars of the matter had changed by the conclusion of the hearing of the substantive application. 

11. Benefits – The Court stated that the submissions were disingenuous and a mischaracterisation of the litigation as any benefits to the Applicant were by-products of the Respondent's intention to construct the proposed structure.

12. Failed agreement – The Court noted that the Respondent, once the negotiation for the "Agreement in Principle" failed, could have abandoned the substantive application.

Conclusion

The Court held that the Respondent was to pay the Applicant's costs of the four-day hearing in the Court, which occurred on the 2nd to the 5th of March 2020 on a standard basis in accordance with the broad discretion of the Court under section 457 of the SPA, as the Applicant had been wholly successful and the Respondent had no reasonable prospects of success.