In brief

The case of Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPEC 44 concerned an application for costs by the Scenic Rim Regional Council (Council) to the Planning and Environment Court (Court) after the Court refused the appeal commenced by the Applicant Appellant in relation to the Council’s refusal of its development application. 

The Applicant Appellant had made a number of development applications since 2011 in order to use the subject premises for commercial groundwater extraction. The latest appeal to the Court concerned a minor change application to the development application in order to extract groundwater for commercial purposes. The Court ultimately refused the appeal as it was held that the development application would conflict significantly with the Council’s planning scheme (Appeal).

The Council sought to recover its costs under section 457(2)(a) and (e) of the Sustainable Planning Act 2009 (SPA) due to the Appellant's unsuccessful appeal and that the development application conflicted with the Council’s planning scheme.

In order to determine whether the Appellant ought to bear the Council’s costs, the Court considered the following matters under section 457(2) of the SPA: 

  • what was the relative success of the parties;

  • was there a commercial interest in pursuing the Appeal;

  • did the Appellant commence or participate in the Appeal for an improper purpose;

  • did the Appellant commence or participate in the Appeal without reasonable prospects of success;

  • did the Appeal concern a decision which conflicted with a relevant instrument under section 326 of the SPA;

  • did the change have an adverse effect on the proceeding to which section 495 of the SPA applied;

  • did the Appeal involve an issue that affected or may affect a matter of public interest, in addition to any personal right or interest of a party in the proceeding;

  • did the parties act unreasonably leading up to the proceeding;

  • did the parties act unreasonably in the conduct of the proceeding;

  • did any of the parties incur costs due to the introduction of new material;

  • did any of the parties incur costs due to a party not complying or not fully complying with a provision of the SPA;

  • did any of the parties incur costs due to a party defaulting in respect of the Court’s procedural requirements; and 

  • whether a party should have taken a more active part in the proceeding and did not do so. 

The Court ultimately held that each party was to bear their own costs.

What was the relative success of the parties?

The Court noted that the Applicant Appellant had accepted that the proposed development conflicted with the Council’s planning scheme and that, the main focus for the Appellant in the Appeal was the identification and sufficiency of grounds for the approval of the proposed development despite its conflict with the Council's planning scheme.

The Appellant in the Appeal relied upon grounds such as the economic need, planning need and community need for the development. The Court held that in this instance, the Appellant had failed to persuade the Court that there was the requisite tension between the application of the planning scheme and the public interest, and that the Appellant’s grounds did not warrant an approval despite the significant conflict with the planning scheme. 

Was there a commercial interest in pursuing the Appeal? 

The Court noted that the development application the subject of the Appeal, was an attempt by the Appellant to secure an approval for commercial groundwater extraction. 

The Court therefore held that the Appellant had a legitimate commercial interest in commencing the Appeal against the Council’s refusal, and that the Council properly defended its position, and the co-respondents properly joined in the Appeal.

Did the Appellant commence or participate in the Appeal for an improper purpose? 

The Court held that the Appellant did not commence the Appeal for an improper purpose as the Appellant had purchased the land for commercial groundwater extraction, spent money on infrastructure and capital for the particular use and sought to resurrect the commercial operation which was once carried out on the premises. 

Did the Appellant commence or participate in the Appeal without reasonable prospects of success? 

The Court held that the Appellant did not commence the Appeal without reasonable prospects of success as the scope of the dispute was tested and refined in the earlier proceeding. Further, the change application sought to meet any deficiencies in its original development application. 

Did the appeal concern a decision which conflicted with a relevant instrument under section 326 of the SPA?

The Court held that the Council’s decision to refuse the development application did not conflict with a relevant instrument defined under section 326(2) of the SPA. Further, the Court held that none of the matters stated in section 326(1) of the SPA were satisfied. 

Did the change have an adverse effect on the proceeding to which section 495 of the SPA applied? 

Although the proceeding was an appeal to which section 495(2) of the SPA applied, the Court held that the change to the development application was made in appropriate circumstances and the change was allowed, and had no adverse effect on the proceeding. 

Did the Appeal involve an issue that affected, or may affect a matter of public interest, in addition to any personal right or interest of a party in the proceeding? 

The Court held that the Appeal  involved an issue which affected or may affect a matter of public interest, in addition to affecting the personal rights and interests of the Applicant Appellant. This was because the issues in the Appeal clearly involved a matter of public interest, being the effect of the development on the water supply in a small community. 

Did the parties act reasonably before and during the Appeal?

The Court held that the Appellant did not act unreasonably during the development assessment process before the commencement of the Appeal and that all parties had conducted themselves reasonably during the Appeal.

Did the parties incur any undue costs?

The Court held that the Appellant did not introduce new material during the proceeding which would have caused the Council to incur undue costs. Further, the Court held that that there was no evidence of non-compliance with the SPA or any evidence of default in the Court’s procedural requirements which would have caused the Council to incur any undue costs.

Whether a party should have taken a more active part in the proceeding and did not do so?

Lastly, the Court held that the Appellant took an active role in the proceeding. 

Conclusion

The Court held that although the Appellant was unsuccessful in the Appeal, it did not contravene any of the circumstances listed under section 457 of the SPA, which the Court has discretion to consider when making an order upon costs. 

The Court therefore held that each party to the Appeal ought to bear their own costs of the proceeding. 

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 2020.

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