In brief

The case of Wason v Gympie Regional Council (No 2) [2018] QPEC 012 concerned an application to the Planning and Environment Court for costs brought by the Appellant following a successful appeal against the Council's decision to refuse a development permit for reconfiguring a lot.

The Court dismissed the application on the basis that the Appellant was not completely successful and that the Council's concerns in respect of the development application were legitimate.

Parties' contentions

The Appellant contended as follows:

1. costs should be awarded as the Appellant was successful in respect of every issue in dispute in the appeal; and

2. costs should be awarded as the Council acted unreasonably in its approach to the appeal as it incorrectly applied its own planning scheme.

In response, the Respondent submitted as follows:

1. the Appellant was not successful in respect of every issue in dispute in the appeal as the Court preferred the evidence of the Council about the suitability of the land;

2. the Court accepted the Council's argument that the land contained some good quality agricultural land and was not entirely limited to grazing as contended for by the Appellant; and

3. the Council correctly applied its own planning scheme regarding the fragmentation and preservation of good quality agricultural land.

The Court noted that the Council was successful in demonstrating that the land did contain good quality agricultural land and, further, that the Council had genuine concerns about the preservation of good quality agricultural land and found that this was reflected in the relevant planning scheme.

Court has discretionary power to award costs

The Court noted its discretionary power to award costs under section 457(1) of the now repealed Sustainable Planning Act 2009 and had regard to its decision in Ferreyra v Brisbane City Council [2016] QPEC 010 where it held as follows:
"The discretion is a broad one, to be exercised judicially, but without any presumption that costs ought to follow the event, or otherwise, on the basis that there is some qualified protection against an adverse costs order."

Court dismissed application for costs

The Court found that the Appellant failed to present a strong argument as to why costs should be awarded. The Court was unconvinced that a costs order was appropriate in circumstances where the Council held genuine concerns in relation to the fragmentation of good quality agricultural land.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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