Wall QC DCJ - 18 July 2014
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Costs – application by appellant that submitter co-respondent pay appellant's costs from a particular date – whether co-respondent thereafter acted "unreasonably" or raised issues not "properly arguable" or "lacking any substance" – whether issues raised by co-respondent were "bona fide matters of town planning relevance"

Facts: This was an application by the Appellant that the First Co-Respondent by Election (Ham) pay the Appellant's costs of and incidental to the appeal limited to those incurred between 17 December 2013 and 4 April 2014.

The appeal was against the Brisbane City Council's refusal of a development application for four multi-unit dwellings on land at Toowong.

Ham was a submitter and elected to join the appeal.

Several without prejudice conferences occurred in the second half of 2013. Under a subsequent Order, Ham notified the parties that the development application should be approved subject to conditions and identified matters which should be addressed by conditions.

Council circulated draft conditions on 17 December 2013.

On 7 January 2014, the Appellant consented to Council's conditions. On 8 January 2014, Ham proposed a number of additional conditions. On 10 January 2014, further orders were made setting a hearing date and identifying the remaining issues in dispute which related to conditions concerning a construction management plan (addressing, among other things, adverse impacts on water supply standards) and traffic.

The Second Co-Respondent by Election (Queensland Urban Utilities) then joined the appeal. In February 2014, Ham participated in expert meetings, to allow the parties' experts to understand his views about the disputed issues. A joint report was produced, the results of which Ham accepted and the appeal was subsequently resolved by a consent order which included different conditions.

The Appellant argued that he achieved "overall success" in the appeal and that Ham acted unreasonably in raising new or expanded issues and ignoring Court rules in relation to expert evidence.

The Appellant conceded that issues raised by Ham resulted in amendments to the draft conditions but submitted that the amendments were only narrow.

Should the application fail, Ham sought an order that the Appellant pay his costs of the application.

Decision: The Court held:

  1. It was unfair to Ham to categorise the amendments to the draft conditions in a minimalist way. Ham did succeed on some of the issues he raised notwithstanding the absence of his own experts, or as a result of raising them conditions were varied from the original draft or were later added.
  2. The issues raised by Ham were properly arguable and he did not act unreasonably in raising them; it could not be said that they lacked any substance. They were bona fide matters of town planning relevance. The extent to which he succeeded on the issues raised by him militated against the Appellant's application.
  3. No sufficient basis had been advanced to warrant an order such as that sought by the Appellant and his application must be dismissed.
  4. The Appellant had failed completely in his application and costs should follow the event.