Nadic Investments Pty Ltd v Townsville City Council
[2015] QPEC 48
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- Unreported Judgment
- Nadic Investments Pty Ltd v Townsville City Council[2015] QPEC 48
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Nadic Investments Pty Ltd v Townsville City Council[2015] QPEC 48
Nadic Investments Pty Ltd v Townsville City Council[2015] QPEC 48
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 48 |
PARTIES: | NADIC INVESTMENTS PTY LTD ACN 009 994 736 (Appellant) v TOWNSVILLE CITY COUNCIL (Respondent) And STOCKLAND DEVELOPMENTS PTY LTD ACN 000 064 835 (Co-Respondent) |
FILE NO/S: | 1671 of 2015 |
PROCEEDING: | Application for costs |
DELIVERED ON: | 30 September 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bowskill QC DCJ |
ORDER: | The appellant pay 80% of the co-respondent’s costs of:
to be assessed on the standard basis. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – Costs of application to determine preliminary issues in an appeal. Sustainable Planning Act 2009 s 457 Cox v Brisbane City Council (No 2) [2014] QPELR 92 YFG Shopping Centres Pty Ltd v Brisbane City Council (No 2) [2015] QPELR 8 Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) (2015) QPELR 168 |
COUNSEL: | JD Houston for the Appellant GJ Gibson QC with JG Lyons for the Co-Respondent |
SOLICITORS: | Broadley Rees Hogan for the Appellant Shand Taylor for the Co-Respondent |
- [1]By application filed 3 August 2015 the co-respondent (Stockland) sought to have the following dealt with as preliminary issues in this appeal:
- (a)whether the appeal may continue notwithstanding partial non-compliance with the requirements for public notification under part 4, chapter 6 of the Sustainable Planning Act 2009; and
- (b)whether the issues identified in any of paragraphs 8-11 of the notice of appeal warrant refusal of the development application.
- (a)
- [2]On 19 August 2015, I determined that it was appropriate to deal with those matters as preliminary issues under r 483 Uniform Civil Procedure Rules 1999, and then proceeded to hear argument in relation to them. On 4 September 2015 I delivered my reasons for allowing Stockland’s application, and indicated that I would hear the parties as to costs: Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 40.
- [3]Stockland seeks an order that the appellant pay part of its costs associated with that application, namely, Stockland’s costs of:
- (a)determining whether the issues identified in Stockland’s application of 3 August 2015 should be dealt with as preliminary issues; and
- (b)determining whether the issues identified in any of paragraphs 8 to 11 of the notice of appeal warrant refusal of the development application.
- (a)
- [4]Stockland does not seek its costs in relation to the public notification issue.
- [5]The power of the court to make an order for costs is conferred by s 457(1) of the Sustainable Planning Act 2009 which provides that:
“Costs of a proceeding or part of a proceeding, including an application in a proceeding, are in the discretion of the court.”
- [6]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. While the success of a party is not a determinative factor it is clearly a relevant and, in some cases, significant consideration.[1]
- [7]Section 457(2) provides a non-exhaustive list of matters the court may have regard to in making an order costs, including:
“(a) the relative success of the parties in the proceeding;
- (b)the commercial interests 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 has acted unreasonably in the conduct of the proceeding…”
- [8]Stockland submits the following matters support the exercise of the discretion in favour of making the costs order it seeks:
- (a)Stockland was wholly successful in obtaining all of the relief that it sought;
- (b)the appellant was on notice from the time of the filing of the application that Stockland would seek its costs;
- (c)the appellant owns adjoining vacant land and, it is understood, wishes to develop its land for residential purposes at some time in the future and accordingly to that extent should be considered a commercial competitor or akin to a commercial competitor;
- (d)the appellant’s opposition to the issues being dealt with as preliminary issues did not have reasonable prospects of success, and was unreasonable:
- (i)given that determination of these issues would result in the most efficient use of the Court’s time; and
- (ii)paragraphs 8-11 of the notice of appeal were unequivocally pleaded as grounds for allowing the appeal and refusing the development application;
- (i)
- (e)Stockland incurred costs unnecessarily in being required to prepare and advance written and oral submissions as to why the issues should be dealt with as preliminary issues and in relation to the correct determination of those issues.
- (a)
- [9]The appellant contends that each party ought to bear its own costs of the application, and submits, in summary:
- (a)the relief sought by Stockland regarding public notification was “tied in to” the issue raised about the wording of the approval in paragraph 8 of the notice of appeal – that is, they were not discrete issues;
- (b)Stockland enjoyed only partial success in respect of its application because:
- (i)whilst it succeeded in respect of paragraphs 8 and 9 of the notice of appeal, it did not succeed in respect of paragraphs 10 and 11; and
- (ii)in relation to the consequential relief sought, it succeeded in having paragraph 9 of the notice of appeal struck out, but not paragraphs 8, 10 and 11;
- (c)the inclusion of a claim for costs in the application itself is not a significant factor;
- (d)the relevance of the appellant having a commercial interest in developing its adjoining land is not identified, and there is no evidence of any commercial advantage to the appellant in defeating Stockland’s development approval;
- (e)there are matters of public interest raised by the appeal, including the “public interest in orderly development” (by reference to paragraph 12 of the notice of appeal) and the public interest in seeing “obvious anomalies on the face of the approval … [being] brought to the attention of the court and resolved”;
- (f)the arguments advanced by the appellant, in opposing the application to deal with preliminary issues, could not be said to lack merit or substance, or to be not fairly arguable;
- (g)it could not be said the appellant acted unreasonably in the conduct of the proceeding, on the basis that s 457(2)(i) contemplates procedural matters (such as not giving reasonable notice of an application for an adjournment, or causing an adjournment), rather than matters of substance in opposing the relief sought; and in any event, opposing the relief sought was not unreasonable;
- (h)the application proceeded expeditiously and efficiently, being heard within 14 days of the first return date; and
- (i)the appellant has not sought its costs of the public notification issue.
- (i)
- (a)
- [10]In my view, for the following reasons, it is appropriate to make an order that the appellant pay 80% of the costs sought by Stockland.
- [11]Stockland was wholly successful, both in relation to its application for preliminary determination of particular issues, and in relation to the determination of those issues.
- [12]As already noted, in so far as the public notification issue is concerned, Stockland does not seek its costs. But that must flow through to the application for preliminary determination of that issue as well. It is for that reason that I propose to allow Stockland 80% of those costs (the question whether to determine the public notification issue on a preliminary basis taking up far less time than the other issues).
- [13]But it is appropriate that Stockland recover those costs because there was, in my view, plainly a practical and commercial imperative to dealing with the issues raised by grounds 8-11, and their relation with paragraph (2) of the prayer for relief, in a preliminary way. As was noted in the reasons at [18]-[19], if determined contrary to Stockland’s interests, the balance of the appeal would have fallen away. The appellant’s opposition to this procedure did, in my view, lack merit.
- [14]As to the costs of determining the preliminary issues (other than public notification), an important point is that it was only at the hearing of the application itself that counsel for the appellant clarified that the appellant was not pressing for refusal of the development application, on any of those grounds. Despite that, the appellant still argued against the matter being addressed in a preliminary way; made no concession as to the removal of paragraph (2) of the notice of appeal; and made substantive submissions regarding the construction of those parts of the preliminary approval highlighted in each of grounds 8-11, against the proposition that they did not affect the validity of it – not actively, but passively, on the basis that they were issues for the determination of the Court.
- [15]Ultimately, Stockland was successful in obtaining the declaratory relief it sought (that grounds 8-11 do not warrant refusal of the development application) as well as an order that paragraph (2) of the notice of appeal (which sought an order that the development application be refused) be struck out.
- [16]It is not accurate to say Stockland enjoyed only partial success, as submitted by the appellant. The question of consequential relief (including striking out various paragraphs) was raised in the course of the hearing (as opposed to forming part of the relief sought by the application itself), and ultimately addressed by the parties in the form of the order agreed between them following delivery of the reasons.
- [17]Given the appellant’s position, that its primary concern was ground 12, and that it was not pressing for refusal of the development application; coupled with the success of Stockland in relation to this application, in my view it is appropriate that Stockland recover a significant proportion of its costs. In simple terms, the appellant could have agreed to the removal of paragraph (2) of its notice of appeal, in which event, the application would not have needed to be made, or pressed.
- [18]However, an aspect of the outcome of the hearing of the preliminary issues did involve the resolution of issues concerning drafting anomalies in the preliminary approval. Those matters having been addressed in the context of this application will save time and cost at the hearing of the substantive appeal, now limited to ground 12. There has been a benefit to Stockland in those matters being dealt with now, in circumstances where there is not the same basis for criticism to be levelled at the appellant, as articulated in paragraph [14] above. It is for that reason that I consider it appropriate that Stockland recover from the appellant most (80%) but not all of its costs of determining the preliminary issues (other than public notification).
- [19]I do not consider the other matters raised by the appellant in opposing this order warrant a different conclusion.
- [20]I therefore propose to order that the appellant pay 80% of Stockland’s costs of:
- (a)determining whether the issues identified in Stockland’s application of 3 August 2015 should be dealt with as preliminary issues; and
- (b)determining whether the issues identified in any of paragraphs 8-11 of the notice of appeal warrant refusal of the development application,
- (a)
in each case to be assessed on the standard basis.[2]
Footnotes
[1]Cox v Brisbane City Council (No 2) [2014] QPELR 92 at [2]-[3]; and YFG Shopping Centres Pty Ltd v Brisbane City Council (No 2) [2015] QPELR 8 (YFG) at [17]; Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) (2015) QPELR 168 at [3] and [30].
[2] For the reasons articulated by Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 at [18]-[22], it is not necessary to refer to the costs “of and incidental to” these matters. See also YFG at [39].