Lake Maroona Pty Ltd v Gladstone Regional Council (No 2)
[2017] QPEC 30
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- Unreported Judgment
- Lake Maroona Pty Ltd v Gladstone Regional Council (No 2)[2017] QPEC 30
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Lake Maroona Pty Ltd v Gladstone Regional Council (No 2)[2017] QPEC 30
Lake Maroona Pty Ltd v Gladstone Regional Council (No 2)[2017] QPEC 30
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Lake Maroona Pty Ltd v Gladstone Regional Council (No 2) [2017] QPEC 30 |
PARTIES: | LAKE MAROONA PTY LTD Appellant v GLADSTONE REGIONAL COUNCIL Respondent |
FILE NO/S: | 4722/16 |
PROCEEDING: | Appeal |
DELIVERED ON: | 25 May 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bowskill QC DCJ |
ORDER: | For the reasons given on 10 May 2017, and today, the orders of the court are: 1. The appeal against the Council’s refusal of a request for an extension of the relevant period of the development approval is allowed; 2. The relevant period of the development approval for material change of use (multiple unit residential (28 units)) issued on 26 March 2012 with respect to land at Lot 2 on SP152150 be extended to 26 March 2020; and 3. Each party bear their own costs of the appeal. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – Costs Sustainable Planning Act 2009 (Qld), s 457 Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 Cox v Brisbane City Council (No 2) [2014] QPELR 92 Ferreyra v Brisbane City Council (No 2) [2016] QPELR 374 Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) [2015] QPELR 168 YFG Shopping Centres Pty Ltd v Brisbane City Council (No 2) [2015] QPELR 8 |
COUNSEL: | K Wylie for the Appellant M Batty for the Respondent |
SOLICITORS:
| Project Legal for the Appellant MRH Lawyers for the Respondent |
- [1]On 10 May 2017 I delivered my reasons for allowing Lake Maroona Pty Ltd’s appeal against the Council’s refusal of its request for an extension of the relevant period of its development approval: Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25.
- [2]I invited submissions from the parties both as to the appropriate form of order and as to costs. The parties are agreed as to orders 1 and 2. This decision sets out my reasons for making order 3, in relation to costs.
- [3]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.”[1]
- [4]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.
- [5]The matters the court may have regard to in exercising the discretion include, but are not limited to, the matters set out in s 457(2). The particular matters Lake Maroona relies on, in pressing for an order that the Council pay its costs, are:
- (a)the relative success of the parties in the proceeding;
- (b)the commercial interests of the parties in the proceeding; and
- (d)whether a party commenced or participated in the proceeding without reasonable prospects of success.
- [6]Lake Maroona submits, firstly, that it was wholly successful in the appeal and its “level of success would make this case one of those in which a party’s relative success is decisive with respect to the matter of costs”; secondly, that the “significant commercial importance of this appeal to [Lake Maroona], and the commensurate consideration that should properly have been undertaken by the … Council prior to determining to resist the appeal” also support an award of costs in favour of Lake Maroon; and lastly, that the Council’s position, in relation to the central issue of construction in the appeal, was not reasonable or fairly arguable, and contrary to authority.
- [7]The Council submits that the appropriate order is that each party should bear its own costs.
- [8]Although Lake Maroona was wholly successful in its appeal, I do not accept that is a decisive factor in the exercise of the discretion under s 457 in this case.[2] The authorities do not support the proposition that the “level” of success of a party to a proceeding determines the weight to be given to this factor. It is but one of a number of factors to be taken into account.
- [9]I do not regard the fact that Lake Maroona had a commercial interest in pursuing its application to the Council, and the appeal, as a factor favouring the making of a costs order. The Council had no commercial interest in the matter; rather an appropriate public interest in defending a decision it had made, in what it regarded as the interests of orderly development. What s 457(2)(b) is particularly directed to, as is apparent from the explanatory memorandum in relation to it, is conduct of commercial competitors in litigation in this court.[3] It may also be a relevant factor where costs are sought against an unsuccessful party which was pursuing its own commercial interests, as compared with public or community interests.[4] But the fact that a successful party has a valuable commercial interest in the subject matter of the proceeding does not in my view weigh one way or the other in terms of whether costs should be awarded.
- [10]The Council’s conduct in relation to this appeal could not be said to be unreasonable. Nor can it be said that the Council’s position in relation to the issues the subject of the appeal was unreasonable, or its contentions not fairly arguable. That they were fairly arguable is reflected in the detailed analysis undertaken by me in addressing them. That I did not, ultimately, accept them does not mean they were unreasonable or unarguable.[5]
- [11]Lake Maroona’s commercial interest in pursuing the application, and then this appeal, in my view supports the order I propose to make, which is that each party bear their own costs. Because it had not managed to act on the development approval in the time originally allowed, Lake Maroona had to seek an extension. It made one application for an extension, which was partially successful, and then a second, which was not. The legislation provides for such an application to be made, and confers a discretion on the relevant decision-making body (the assessment manager or on an appeal this court) as to whether or not to grant it. But Lake Maroona needed to make that application in order to give effect to its commercial interest in the land, and in the proposed development. Being dissatisfied with the Council’s decision refusing the extension, it sought to appeal to this court, as it is entitled to do. It has been successful, which means that its commercial interests have been protected. But in circumstances where I am not persuaded that the Council’s conduct, or position, was unreasonable or unarguable, in my view the appropriate order is that each party bear its own costs.
Footnotes
[1] I note that s 457 has now been amended by the Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2017 (Act No. 12 of 2007), which was assented to on 19 May 2017. As amended, subject to a new s 457A (costs in particular circumstances, for example, where proceedings have been commenced for an improper purpose or are considered frivolous or vexatious) and s 457B (costs in particular proceedings, such as enforcement proceedings), s 457 will now provide that each party to a proceeding bear its own costs. This does not affect proceedings which were started before the commencement of the amendment (s 999), in relation to which the existing s 457 will continue to apply.
[2] See, for example, Cox v Brisbane City Council (No 2) [2014] QPELR 92 at [6]; Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at [4] and [26]; Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) [2015] QPELR 168 at [3] and [30]; and Ferreyra v Brisbane City Council (No 2) [2016] QPELR 374 at [7].
[3] YFG Shopping Centres Pty Ltd v Brisbane City Council (No 2) [2015] QPELR 8 at [20].
[4] Altitude Corporation Pty Ltd v Isaac Regional Council (No 2) [2015] QPELR 139 at [6]-[7]; Ferreyra v Brisbane City Council (No 2) [2016] QPELR 374 at [13].
[5] Cox v Brisbane City Council (No 2) [2014] QPELR 92 at [22].