In brief
In the case of
Friend v Brisbane City Council [2014] QPEC 39, the Queensland Planning and Environment Court considered an application for costs by Trentham Holdings Pty Ltd. The court determined that there was no basis to award costs in favour of Trentham Holdings, and dismissed its application, with the consequence of each party bearing its own cost.
Court not persuaded by Trentham Holdings' success in the appeal
Trentham Holdings argued that because it was wholly successful in the appeal, and that the court preferred the evidence of its town planner over that of the town planner of Robert Friend, and Gregory and Karen Manning, costs should be ordered in its favour.
The court rejected this argument, noting that while the court preferred the evidence of Trentham Holdings' town planner, it was not unusual for the opinion of experts within the same field to differ. Significantly, the divergence of opinion between the experts was in this case due to the drafting anomalies within the critical planning instrument and such anomalies underpinned the opinion of the town planner of Mr Friend and Mr and Mrs Manning.
No evidence proceedings commenced for an improper purpose
Trentham Holdings argued that Mr Friend and Mr and Mrs Manning commenced the appeal for an improper purpose, namely, continuing to proceed with the appeal to prevent a precedent from being set within the locality, despite being previously told by the court that such basis lacked merits in a planning sense.
The court rejected this argument noting that the precedent argument was never raised as an issue or argued during the appeal.
In support of its contention that the appeal was commenced for an improper purpose, Trentham Holdings also argued that Mr Friend, in his capacity as a director and shareholder of the incorporated legal practice acting for himself and Mr and Mrs Manning, continued the appeal in order to profit from the litigation and fees paid to the incorporated legal practice.
As there was no evidence before the court to suggest Mr Friend proceeded for an improper purpose as a result of his involvement in the incorporated legal practice, the court did not accept Trentham Holdings' argument.
Prospects of success on different issues not to be considered in isolation
Trentham Holdings argued that Mr Friend and Mr and Mrs Manning's town planner's opinions were "perverse" and no reasonable party would have proceeded with the appeal on the basis of such opinions.
The court acknowledged that while Mr Friend and Mr and Mrs Manning's town planner's opinions were rejected by the court essentially on all planning issues, his opinions did not lack objectivity and were not "perverse". In the circumstances, Trentham Holdings could not show why it was unreasonable or improper for Mr Friend to rely on his town planner's opinion, particularly given the drafting anomalies in the critical planning instrument.
Trentham Holdings also argued that Mr Friend had no reasonable prospects of success in relation to a number of discrete issues including traffic and heritage- related issues.
The court did not accept that there were no real prospects of success having regard to the manner in which those issues were addressed during the appeal. The court observed that Trentham Holdings' apparent approach of considering the success of these issues in isolation from other relevant issues in the appeal was being unnecessarily restrictive.
Appeal had sufficient public interest aspect
Trentham Holdings argued that Mr Friend and Mr and Mrs Manning had not identified any matter of public interest in maintaining the appeal.
The court rejected this argument, noting that the inclusion of the temporary local planning instrument and the draft planning scheme were issues which were appropriately raised both in terms of the justice between the parties and the public interest, to ensure that the decision of the court took into account all relevant matters.
Mr Friend and Mr and Mrs Manning did not act unreasonably
Trentham Holdings, by reference to the withdrawal from the appeal of the Kangaroo Point Residents' Association prior to the hearing, argued that it was unreasonable for Mr Friend and Mr and Mrs Manning to proceed with the appeal.
The court rejected this argument, observing that it was difficult to see how the decision of one party to discontinue should render another party's decision to proceed unreasonable.
Trentham Holdings further argued that Mr Friend and Mr and Mrs Manning had acted unreasonably in rejecting offers to settle the appeal.
The court also rejected this argument, on the basis that it was not unreasonable for Mr Friend or Mr and Mrs Manning to proceed in light of the opinions of their town planner, and further the offers were pre-conditioned on agreement by all appellants including Mr Friend and Mr and Mrs Manning.
No evidence of failure to comply with procedural requirements
Trentham Holdings argued that there was a failure by Mr Friend and Mr and Mrs Manning to disclose the marital relationship between their town planner and one of the adverse submitters to the proposed development. It alleged the failure to disclose was a calculated decision to not undermine their case by exposing the personal interest of their principal witness.
The court rejected the argument on the basis of the lack of evidence, and observed that it was nonetheless far from establishing impropriety or unreasonableness on the part of Mr Friend or Mr and Mrs Manning.