Spry v Brisbane City Council (No 2)
[2017] QPEC 21
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- Unreported Judgment
- Spry v Brisbane City Council (No 2)[2017] QPEC 21
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Spry v Brisbane City Council (No 2)[2017] QPEC 21
Spry v Brisbane City Council (No 2)[2017] QPEC 21
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Spry v Brisbane City Council & Anor (No 2) [2017] QPEC 21 |
PARTIES: | LESLEY FIONA CAROLINE SPRY (appellant) v BRISBANE CITY COUNCIL (respondent) and CARLA TURNER (co-respondent) |
FILE NO/S: | 3109/16 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application on the papers |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 10 April 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Application on the papers |
JUDGE: | Kefford DCJ |
ORDER: | The appellant pay the co-respondent’s costs of the appeal, including the costs of this application, on the standard basis. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE - Costs – Where the appellant abandoned four of its five grounds of appeal during final submissions – where the appellant did not succeed on the remaining grounds of appeal - Whether the appellant should be ordered to pay the co-respondent’s costs of an appeal – Whether the abandonment of the grounds of appeal constituted a “surrender” – Whether a costs order should be made when there was no final determination of the merits of each of the grounds of appeal – Whether the appellant had reasonable prospects of success – Whether the grounds of appeal were unmeritorious – Whether there was disentitling conduct by the co-respondent Sustainable Planning Act 2009 (Qld), s 457 Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139; [2014] QPEC 55, applied Hammercall Pty Ltd v Robertson & Anor; Hammercall Pty Ltd v Robertson & Ors [2011] QCA 214, cited Hoffie v Brisbane City Council (2013) 197 LGERA 28; [2013] QPEC 41, considered Re Minster for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6, applied |
COUNSEL: | M Spry and J R Ward for the appellant (direct brief) B D Job for the co-respondent |
SOLICITORS: | Romans and Romans Lawyers for the co-respondent |
Introduction
- [1]On 22 March 2017, at the hearing of an appeal pursuant to s 462 of the Sustainable Planning Act 2009, I delivered ex tempore reasons for my decision to allow the appeal on a limited basis: Spry v Brisbane City Council & Anor [2017] QPEC 16.
- [2]The co-respondent seeks an order that the appellant pay its costs of the appeal, including the application for costs.
- [3]The co-respondent contends it was entirely successful in the appeal in that:
- (a)all but one of the grounds of appeal were abandoned by the appellant at the hearing, such abandonment being tantamount to a “surrender”; and
- (b)the remaining ground was doomed to fail.
- [4]The co-respondent further submits that the abandoned grounds were unmeritorious and contrary to authority in any event.
- [5]In response, the appellant contends that:
- (a)the result in the appeal represents a consent position in relation to the key issue at the heart of the appeal, not a “surrender”;
- (b)the court was not required to form a concluded view on the merits of the appellant’s appeal; and
- (c)there should be no order as to costs having regard to the conduct of the parties.
Background
- [6]The development approval the subject of the appeal was a development permit for a material change of use for the construction of three multiple dwellings on the co-respondent’s land.
- [7]The approval was subject to conditions, including conditions 35, 36 and 37 associated with stormwater.
- [8]Those conditions provided as follows:
35) Lawful Point of Discharge
If required, submit to Development Assessment, evidence of written consent for a lawful point of discharge from the owners of properties affected by any stormwater discharge from the site.
Note. Refer to Council’s website for a standard lawful point of discharge agreement template which is acceptable to council.
36) Site Drainage - Major
Provide an internal drainage system to collect stormwater run-off from all proposed lots, roofed and developed surface areas, and any run-off onto the site from adjacent areas and convey the collected run-off to a lawful point of discharge, in accordance with the relevant Brisbane Planning Scheme Codes.
Option 1. Submit to Development Assessment CCTV and as constructed plans demonstrating the existing 225 mm dia pipe located in downstream property (7 West Street – L5 RP12156) is in working order. If this can be demonstrated to the satisfaction of Development Assessment, no further action is required.
Option 2. Provide connection to lawful point of discharge (e.g. pump systems) in accordance with the relevant Brisbane Planning Scheme Codes, including submission of plans as outlined below.
Note. The stormwater design must ensure the storm water runoff from the site does not adversely impact on flooding or drainage (peak discharge and duration for all storm events up to the 1% AEP event) of properties that are upstream, downstream or adjacent to the site. Some developments may require implementation of one or more mitigation measures to offset adverse impacts, (e.g. stormwater detention, rainwater tanks, and upgrade of stormwater drainage infrastructure).
Note. Guidance for the preparation of drawings and or documents to comply with this condition is provided in the Brisbane Planning Scheme Policies.
36(a) Submit Site Drainage Drawings
Submit and obtain approval from Development Assessment, site drainage drawings and engineering calculations, prepared and certified by a Registered Professional Engineer Queensland, in accordance with the relevant Brisbane Planning Scheme Codes.
Timing: Prior to site/operational/building work commencing
36(b) Implement Approved Drawings
Carry out the works in accordance with the approved site drainage drawings.
Timing: Prior to issue of Certificate of Classification/ File Inspection Certificate or prior to commencement of use, whichever comes first (MCU or BW), or prior to Council’s notation of the plan of subdivision (ROL), and then to be maintained
36(c) Submit As Constructed Drawings
Submit “As Constructed” drawings prepared by a Registered Professional Engineer Queensland certifying that the works have been completed in accordance with the approved site drainage drawings.
Timing: Prior to issue of Certificate of Classification/Final Inspection Certificate or prior to commencement of use, whichever comes first (MCU or BW), or prior to Council’s notation of the plan of subdivision (ROL,) and then to be maintained
37) Ponding of Stormwater
Carry out the approved development to ensure that adjoining properties and roads are protected from ponding or nuisance from stormwater as a result of the works.
Notes: If remedial works are necessary to comply with this condition, prior approval must be obtained from Development Assessment.
- [9]The timing for condition 35 was stated to be prior to site/operational/building work commencing.
- [10]The appeal sought relief to the effect that the decision to approve the development be set aside and the development application refused and, in the alternative, that conditions 35 and 36 be set aside and the development “consent” require the co-respondent to have a lawful point of discharge in place “prior to development approval”.
- [11]The grounds of appeal were contained in paragraphs 10 to 14 of the Notice of Appeal. Those grounds:
- (a)in paragraph 10, included a “Wednesbury” challenge;
- (b)in paragraphs 11 and 12, took issue with conditions 35 and 36 on the basis that they lacked finality and certainty;
- (c)in paragraph 13, complained that the decision of the respondent failed to impose a condition that no connection be made to the foul water/private pipeline traversing the subject land, 9 West Street and 11 West Street; and
- (d)in paragraph 14, complained of an absence of a condition to remove an existing stormwater connection associated with an existing dwelling house on the land.
- [12]The grounds of appeal:
- (a)did not allege that there were any adverse impacts associated with the development as approved;
- (b)did not contend that compliance with the conditions of approval was not feasible; and
- (c)did not identify any conflict with any provision of City Plan 2014.
Relevant legal principles
- [13]The power of the court to make an order for costs is conferred by s 457(1) of the Sustainable Planning Act 2009 (Qld), 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.”
- [14]Section 457(2) of the Sustainable Planning Act 2009 identifies matters that the court may have regard to in its exercise of discretion. They include:
- (a)the relative success of the parties in the proceeding: s 457(2)(a);
- (b)whether a party commenced or participated in the proceeding without reasonable prospects of success: s 457(2)(d);
- (c)whether a party has acted unreasonably leading up to the proceeding, including, for example, if the proceeding is an appeal against a decision on a development application, the party did not, in responding to an information request, give all the information reasonably requested before the decision was made: s 457(2)(h);
- (d)whether a party has acted unreasonably in the conduct of the proceeding, including, for example, by not giving another party reasonable notice of the party’s intention to apply for an adjournment of the proceeding or by causing the adjournment of the proceeding because of the conduct of the party: s 457(2)(i); and
- (e)whether a party should have taken a more active part in the proceeding and did not do so: s 457(2)(m).[1]
- [15]The list in s 457(2) is not an exhaustive list: s 457(3).
- [16]The discretion under s 457 is a broad one. It is to be exercised judicially. While the relative success of the parties is a relevant factor, and might, in a particular case, prove decisive, there is no presumption that costs ought to follow the event or that there is some qualified protection against an adverse costs order: Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at 140 [4]; [2014] QPEC 55.
- [17]With respect to the issue of “surrender”, the co-respondent relied on the observations of Durward DCJ in Hoffie v Brisbane City Council (2013) 197 LGERA 28 at [21]; [2013] QPEC 41 that:
“… the unilateral decision of the co-respondent not to proceed further with a Development Application … is a “surrender” by the co-respondent … such as was discussed by Burchett J in One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548 at [6]; as in the summary of principles adopted by Preston CJ in Kiama Council v Grant (2006) 143 LGERA 441; as discussed by Bignold J in his reference to costs ordinarily being awarded against a “discontinuing party”, in Manly Wharf Pty Ltd v Manly Council [1997] NSWLEC 1005; and see Woollondilly Shire Council v Anh Nhu Le (2004) 137 LGERA 416.”
- [18]As was alluded to by Durward DCJ, a summary of the principles relevant to “surrender” are considered by Preston CJ in Kiama Council v Grant (2006) NSWLEC 96; 143 LGERA 441. Preston CJ considered the proper approach to the question of costs where substantive orders were made, yet they were not the product of a final hearing and determination of the applicant’s claim. After a detailed consideration of relevant cases, Preston CJ wrote at 457 [80]:
“The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits:
- (a)where one party effectively surrenders to the other party by:
- (i)discontinuing without the consent of the other party; or
- (ii)giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party;
the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and
- (b)where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless:
- (i)one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or
- (ii)even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action.”[2]
- [19]One of the many cases considered by Preston CJ before distilling the above principles, particularly in relation to cases involving a supervening event, was Re Minster for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6. In that case, McHugh J outlined “the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means.” The relevant principles were described by McHugh J as follows:
“In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. …
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. …” (footnotes omitted, emphasis added)
- [20]These principles were applied by the Queensland Court of Appeal in Hammercall Pty Ltd v Robertson & Anor; Hammercall Pty Ltd v Robertson & Ors [2011] QCA 214. That case involved an application for costs under rule 685 of the Uniform Civil Procedure Rules 1999, which provides:
“(1) If, for any reason, it becomes unnecessary to continue a proceeding other than for deciding who is to pay the costs of the proceeding, any party to the proceeding may apply to the court for an order for the costs.
- (2)The court may make the order the court considers just.”
Relative success of the parties, “surrender” and absence of determination of the merits
- [21]The co-respondent contends it was entirely successful in the appeal.
- [22]The co-respondent submits that the appellant’s position in relation to grounds 10, 11, 12 and 14 is tantamount to “surrender” as the appellant abandoned the grounds of appeal contained in paragraphs 10, 11, 12 and 14 during the course of the appellant’s submissions and after:
- (a)the respondent and co-respondent’s agreement (without concession) to delete the reference to option 1 from condition 36;
- (b)acknowledgment that the “Wednesbury” challenge in ground 10 was not appropriate in the hearing anew; and
- (c)acceptance that the appeal was not the appropriate forum for the challenge in ground 14 to the existing stormwater arrangement.
- [23]The appellant does not dispute the matters referred to in paragraph [22], but submits that:
- (a)the appellant’s abandonment of the grounds of appeal in paragraphs 10, 11, 12 and 14 are not tantamount to a “surrender” as “such a submission is inconsistent with it adopting the Appellants (sic) position”; and
- (b)the court was not required to form a concluded view on the merits of the appellant’s appeal and it would be procedurally unfair to make an adverse costs order having not heard fully from the appellant in relation to the matters going to the heart of the appeal.
Was there a “surrender”?
- [24]The circumstances leading to the abandonment of the grounds of appeal contained in paragraphs 10, 11, 12 and 14 of the notice of appeal were as follows.
- [25]After the opening by the co-respondent, the appellant commenced its submissions with respect to its grounds of appeal. The first matter addressed was whether conditions 35 and 36 were unreasonable and ought not be imposed. During the course of those submissions:
- (a)Counsel for the appellant stated “whether this is a question of Wednesbury unreasonableness, or whether it’s a question of merits review, it could not be reasonable to have a condition that presupposes a connection to a non-existent drain”;[3]
- (b)Counsel took the court through the exhibits to the affidavit of the appellant, including each of the documents referenced in paragraph 10 of the Notice of Appeal and made submissions about the relevance and importance of the contents of the documents;[4]
- (c)Counsel for the appellant submitted that “if one looks at grounds 10 - 10 of the appeal, even if one was to apply Wednesbury test – and we accept that that’s not the test that the court must apply – that each of those matters raised are now made out; that sections 35 and 36 are inconsistent with the advice provided by the respondent to the co-respondent. … And, we say, as a consequence condition 36 is incapable of performance, and given that it’s incapable of performance, we say even on the Wednesbury test it is unreasonable.”[5]; and
- (d)when questioned about whether the submission was that condition 36 in its entirety was incapable of performance, or only the part that refers to “option 1”,[6] Counsel for the appellant stated:
- (i)“To impose a condition that includes option 1 is not reasonable because it’s incapable of performance”;[7] and
- (ii)“If the condition was such that the co-respondent was required to have in place, before the commencement of works, a lawful point of discharge, whether that be a pump system, that is … an identified pump system that complies … with the policy in the City Plan, then, of course, the appellant would have no objection to that”;[8]
- (e)Counsel for the appellant indicated that if the paragraph containing option 1 was deleted from condition 36, it would resolve the appellant’s concerns “in their entirety, except for the connection to the foul water pipeline, which we have now – have now learnt has been made. So it would resolve the appellant’s concern in respect of the unreasonableness of a condition that has connection to a non-existent pipe.”[9]
- [26]Following the exchange with the court, Counsel for the appellant proceeded to make submissions with respect to paragraphs 13 and 14 of the Notice of Appeal, being the grounds containing allegations about a connection to a foul water/private pipeline. The submissions were developed by reference to documents in the affidavit of the appellant.[10]
- [27]All of the above submissions and exchanges with the court occurred prior to any indication by the respondent or co-respondent of their preparedness to accept the deletion of the paragraph with respect to “Option 1” from condition 36. Those indications came towards the end of the submissions by Counsel for the appellant when, once again, the appellant’s Counsel was submitting that the difficulty with condition 36 stemmed from the inclusion of option 1, with which compliance was said not to be possible.[11]
- [28]In an attempt to “short circuit things”, Counsel for the respondent indicated that, for the sake of expediency and without any admission as to the lawfulness of the condition, the respondent was prepared to accept the deletion of the paragraph with respect to “Option 1” from condition 36. Counsel for the co-respondent then made a similar offer “in the interests of moving on from the issue”. He noted that it was disappointing that the appellant had only just now indicated that deletion of option 1 would have addressed the concern; the appellant’s pleading sought that the development be refused or alternatively conditions 35 and 36 be deleted.[12]
- [29]It was at this point of the proceedings that the appellant:
- (a)abandoned the grounds of appeal contained in paragraphs 10, 11 and 12 of the notice of appeal;
- (b)conceded that “it’s not a matter for today as to whether or not there has been unlawful use of the land in relation to the connection of the existing dwelling”; and
- (c)confirmed that the only remaining issue in dispute was the ground of appeal in paragraph 13 of the notice of appeal.[13]
- [30]In terms of the deletion of option 1 from condition 36:
- (a)as I observed in Spry v Brisbane City Council & Anor [2017] QPEC 16 at [7] – [9], there was no concession on the part of the co-respondent (or the respondent) that such deletion was necessary. The deletion was, in fact, entirely unnecessary given:
- (i)the form of the condition, where “option 1” was nothing more than a possible solution such that the inability to achieve that solution did not render the condition incapable of performance;
- (ii)the obligations contained in paragraphs 36(a), 36(b) and 36(c) of the condition; and
- (iii)the stated times for compliance with those obligations; and
- (b)there was no indication within the Notice of Appeal, express or otherwise:
- (i)that the deletion of option 1 was sought by the appellant;
- (ii)that the grounds of appeal in paragraphs 11, 12 or 14 were based upon the inclusion of option 1 within condition 36.
- [31]The only issue with which the appellant proceeded was the ground of appeal contained in paragraph 13. That ground was addressed by me in Spry v Brisbane City Council & Anor [2017] QPEC 16 at [10] – [12]. The ground contained nothing more than a bare assertion that the decision notice did not include a condition stipulating that no connection was to be made to a foul water/private pipeline. No relief was sought in relation to the allegation. There was no associated allegation of conflict with the planning scheme, nor of unacceptable or adverse impacts.
- [32]As the circumstances outlined above demonstrate, this is a case in which the appellant, after litigating the appeal right up to and including final submissions, effectively surrendered. The appellant no longer sought the relief claimed in her notice of appeal.
- [33]Although it was necessary to allow the appeal so that the paragraph with respect to option 1 could be deleted,[14] this was a case where the co-respondent could be regarded as entirely successful. The appellant did not achieve any of the relief that she sought in her notice of appeal.
Absence of determination of the merits of paragraphs 10, 11, 12 and 14
- [34]The appellant resists a costs order on the basis that the court was not required to form a concluded view on the merits of the appellant’s appeal.
- [35]If, contrary to my view, the conduct of the appellant could not be characterised as a “surrender”, this would be a case where a supervening event or settlement so removed or modified the subject of the dispute that no issue remained to be determined in relation to paragraphs 10, 11, 12 and 14 of the Notice of Appeal. The relevant event was the agreement by the respondent and co-respondent to the deletion of “option 1” from condition 36.
- [36]As such, the absence of a final determination of all of the issues in dispute is not, of itself, sufficient to preclude an order of costs.[15]
Prospects of success
- [37]In Spry v Brisbane City Council & Anor [2017] QPEC 16 at [11] – [22] I explain why paragraph 13 of the notice of appeal was unmeritorious and contrary to authority.
- [38]The co-respondent submits that the grounds of appeal in paragraphs 10, 11, 12 and 14 were equally unmeritorious and contrary to authority. The submissions were as follows:
“(a) the type of challenge contained in paragraph 10 is inappropriate in a hearing anew: Australand Holdings Pty Ltd v Gold Coast City Council [2007] QPELR 451 at [30]; LMRM Pty Ltd v Brisbane City Council [2017] QPEC 7 at [11]. Even if a challenge of that type had been available, this court has previously observed that the demonstration that a Council’s decision is manifestly unreasonable is one which “has long been recognised as an extremely demanding task to succeed on”: Di Marco v Brisbane City Council [2006] QPELR 731 at [38]. That is evident from the collection of authorities considered in Wheldon v Logan City Council [2015] QPELR 640 at [19] – [32]. Ground 10 was apparently directed towards the “decision” to approve, but even if it had been expressly confined to a decision to include condition 36, the condition could not be said to be manifestly unreasonable;
- (b)there was no indication in the Notice of Appeal, express or otherwise, that ground 11 was based upon the inclusion of Option 1 within condition 36. It was simply abandoned. The ground also referred to the “decision”. That ground was also contrary to authority. For example, in Caloundra City Council v Pelican Links Pty Ltd [2005] QPELR 128 at [51] the Court considered authorities regarding the issue of finality and held:
“It seems to me therefore that there are, as it were, 2 aspects to the “test” and if the condition infringes either or both it is invalid. These can be stated relevantly to the facts here in the following way. Firstly, if a condition, imposed (on an approval) by Council has the effect of significantly altering the development in respect of which the development application is made, then the proposed approval is no approval at all. Secondly, where a condition leaves for later decision an important aspect of the development, and the decision on that aspect could alter the proposed development in a fundamental way, then the approval with that condition cannot be regarded as final.”
Neither of those aspects arose in this instance. Indeed, as the Court observed in this appeal, the Court has in the past determined that conditions of the type here proposed are appropriate: Sumvista Pty Ltd v Redland Shire Council [2005] QPELR 460;
- (c)similarly, the link between ground 12 and Option 1 in condition 36 is not apparent and was not explained. It was also simply abandoned; and
- (d)ground 14 is also unrelated to Option 1 in condition 36. It was misconceived. The appeal concerns Council’s decision to approve the proposed development, rather than the appropriateness of the existing use of the land.
- [39]No contrary submissions were made by the appellant. Rather, the appellant contends that it would be procedurally unfair to make an adverse costs order having not heard fully from the appellant in relation to matters going to the heart of appeal.
- [40]The co-respondent delivered written submissions on costs on 28 March 2017. They contained the submissions quoted in paragraph [38] above. The appellant’s written submissions were provided on 3 April 2017.
- [41]The appellant has had an opportunity to refute the contentions made by the co-respondent, including by filing material or referring to authority to demonstrate the merit of the grounds of appeal. It elected not to do so. No issue of procedural unfairness arises.
- [42]I accept the submissions of the co-respondent. This is a clear case of a party commencing and continuing a proceeding without reasonable prospects of success. The case is one that was so lacking in merit or substance as to not be fairly arguable.[16]
Conduct of the parties
- [43]The appellant relies on a number of matters with respect to conduct of the proceeding in support of the contention that no costs order ought be made.
Notice
- [44]The appellant submits that “at no time did the co-respondent put the appellant on notice that, in her view, the appellant had commenced or participated in the appeal without reasonable prospects of success and that, in the event of the appellant failing in the appeal, the co-respondent would seek her costs”.
- [45]I do not regard this as disentitling conduct. The co-respondent was not obliged to provide the appellant with such advice.
- [46]Further, the appellant was represented by two Counsel on direct access briefs. It is reasonable to infer that they complied with their direct brief obligations in Planning and Environment Court Practice Direction No. 6 of 2012 and that the appellant had sufficient opportunity to obtain her own advice about the merits of her appeal prior to, and throughout, the conduct of the proceedings.
Practice Direction 2 of 2014
- [47]The appellant submits that “a party who, for tactical or strategic reasons, allows an appeal to run without complaining that the appeal was commenced or participated in without reasonable prospects of success, should not be the beneficiary of a favourable costs order, even if that party had been entirely successful”. Such an outcome is said by the appellant to be inconsistent with the philosophy underpinning the conduct of contemporary civil litigation and Planning and Environment Court Practice Direction No 2 of 2014.
- [48]Again, I do not regard this as disentitling conduct. The matter was first mentioned for directions on 27 January 2017. Although this was not within the 6 week timeframe provided for in the Practice Direction, there is no evidence that the delay is of some significance in terms of costs or other prejudice to the appellant.
- [49]The matter was mentioned again on 17 February 2017, at which time orders were made requiring the exchange of expert reports and lay witness statements on 10 March 2017 and participation a mediation by 15 March 2017, and setting the matter down for a one day hearing on 22 March 2017.
- [50]Overall, the matter proceeded expeditiously with a minimum of process, which was appropriate given the confined nature of the grounds of appeal.
- [51]I repeat those matters referred to in paragraph [46].
Other complaints with respect to the co-respondent’s conduct
- [52]The appellant also submits that the co-respondent’s conduct was unreasonable in that the co-respondent:
- (a)failed to participate in a without prejudice meeting / mediation as proposed by the co-respondent and agreed to by the appellant on the same day;
- (b)provided the appellant with CCTV footage of a drain that does not exist;
- (c)failed to provide source documents used in the preparation of the stormwater plan provided to Council on 9 May until 30 November 2016;
- (d)provided source documents on 30 November 2016 that post-dated the stormwater plan and, as such, would appear not to have been the actual source documents;
- (e)maintained the fiction of a non-existent pipe until 3 February 2017;
- (f)did not provide any evidence on 10 March 2017, despite informing the appellant that evidence would be provided;
- (g)caused the appellant to attend a mediation on 15 March 2017 without providing the material referred to above; and
- (h)abandoned reliance on her stated position as to the treatment of stormwater at the hearing on 22 March 2017.
- [53]The complaints about the non-provision of expert reports and lay witness statements should be viewed in a context where the co-respondent ultimately elected, as it was entitled to do, not to call any such evidence.
- [54]The appellant contends that the co-respondent’s failure to take a more active role in the proceedings, including by participating in a without prejudice meeting on 2 September 2016 and by providing source documents used in the preparation of the stormwater plan, are important considerations that weigh against a costs order.
- [55]The appellant also places reliance on what is said to be her genuine concerns about the impact of stormwater on her property and genuine concerns about the decision making process undertaken by Council.
- [56]It is accepted that the appellant was acting out of genuine concern and such matters can be an important consideration to weigh in the overall exercise of the discretion: Ferreyra & Ors v Brisbane City Council & Anor (No 2) [2016] QPEC 13. However, that does not mean that the co-respondent ought be expected to bear the costs of defending an appeal that, from the outset, was doomed to fail.
- [57]Further, while the conduct of the co-respondent referred to is unfortunate, it is not so egregious to amount to disentitling conduct when weighed against those other matters referred to above, particularly the lack of prospects on the appeal.
Order
- [58]Taking into account each of those matters referred to above, I consider it appropriate that the appellant pay the co-respondent’s costs of the appeal, including this application for costs.
- [59]The order will therefore be that the appellant pay the co-respondent’s costs of the appeal, including the costs of this application, on the standard basis.
Footnotes
[1]These were the provisions referred to by the parties.
[2]This case was referred to by Durward SC SCJ in Hoffie v Brisbane City Council (2013) 197 LGERA 28; [2013] QPEC 41 at [21] and applied by Robertson DCJ in Hartley & Anor v Isaac Regional Council & Anor [2016] QPELR 104; [2015] QPEC 56 and Bowskill QC DCJ in Gray v Gympie Regional Council [2016] QPELR 925; [2016] QPEC 49.
[3]T1-40/L12-15.
[4]T1-40/L27 – T1-44/L43.
[5]T1-44/L45 – T1-45/L10.
[6]T1-45/L12-31 and T1-46/L5-21.
[7]T1-45/L40-41.
[8]T1-46/L23-27.
[9]T1-47/L14-17.
[10]T1-47/L21 – T1-58/L46.
[11]T1-57/L18 – T1-58/L14.
[12]T1-59/L1 – T1-60/L8.
[13]T1-60/L24 – T1-61/L13.
[14]If the appeal were dismissed, the original development approval would take effect without the deletion: s 339 of the Sustainable Planning Act 2009. While the deletion was unnecessary, it was one that obviously provided some level of comfort to the appellant.
[15]See Re Minster for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6.
[16]See Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at [25]; [2014] QPEC 55.