LMRM Pty Ltd v Brisbane City Council
[2017] QPEC 7
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- Unreported Judgment
- LMRM Pty Ltd v Brisbane City Council[2017] QPEC 7
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LMRM Pty Ltd v Brisbane City Council[2017] QPEC 7
LMRM Pty Ltd v Brisbane City Council[2017] QPEC 7
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | LMRM Pty Ltd v Brisbane City Council [2017] QPEC 7 |
PARTIES: | LMRM PTY LTD (ACN 109 351 519) ATF LMRM TRUST (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | 2576 of 2016 |
PROCEEDING: | Appeal |
DELIVERED ON: | 3 March 2017 |
DELIVERED AT: | BRISBANE |
HEARING DATE: | On the papers – submissions received 27 January 2017 |
JUDGE: | Rackemann DCJ |
ORDER: | The appellant pay the respondent’s costs of and incidental to the application in the pending proceeding, to be assessed on the standard basis. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – COSTS – where respondent successful in application to expand the issues in dispute – where additional issues initially opposed on the basis that they went beyond the reasons for refusal and the respondent had not explained why the additional issues were not in its reasons for refusal – where consent ultimately given to orders expanding the issues once particulars where given – where particulars had not been requested until the hearing of the application – whether appellant ought to pay the costs of the respondent’s application |
COUNSEL: | Michael Connor (solicitor) for the appellant Benjamin D Job for the respondent |
SOLICITORS: | Connor O'Meara Solicitors for the appellant Brisbane City Legal Practice for the respondent |
- [1]This is an application by the respondent for its costs of an application in pending proceeding filed on 28 November 2016. That application was for orders that certain additional issues be included as issues in dispute in the proceeding, was initially the subject of a contested hearing on 6 December 2016, but was ultimately disposed of by uncontested orders on 10 January 2017.
- [2]The court has a general discretion with respect to costs (s 457 of the Sustainable Planning Act). The discretion is broad, but is exercised judicially. There is no presumption that costs should ordinarily follow the event, nor that parties have some qualified privilege against an adverse costs order. Section 457(2) sets out a non-exhaustive list of matters to which the court may have regard.
- [3]The subject appeal, which was instituted on 4 July 2016, is against the respondent’s decision to refuse an application for a development permit for a material change of use for a multi-unit dwelling, hotel, short-term accommodation, shop and nightclub; and a preliminary approval to carry out building work for a heritage place, listed both on the state and council registers. The application relates to the well-known Normanby Hotel.
- [4]On 26 September 2016 the appellant filed an application, returnable on 6 October 2016, seeking orders and directions about the conduct of the proceeding, including orders and directions about the identification of the issues in dispute. On the return of that application, on 6 October 2016, orders were made with the consent of the parties. Those orders included, relevantly, as follows:
- The issues in dispute in the appeal are the issues identified in paragraphs 6, 7 and 8 of the Notice of Appeal;
- If the respondent wishes to notify additional issues in dispute, it must give written notice of the additional issues of the appellant by 14 October 2016; and
- By 21 October 2016, the appellant will notify the respondent whether it objects or consents to any additional issues raised in accordance with paragraph 2 of this order being issues in the appeal.
- [5]Paragraph 6 of the Notice of Appeal sets out the reasons for refusal stated in the Council’s decision notice of 6 June 2016. Paragraph 7 of the Notice of Appeal traverses those grounds, whilst, in paragraph 8, the appellant asserts that there are sufficient grounds to justify the approval of the development application notwithstanding any conflict which may be found to exist with the relevant planning scheme.
- [6]In accordance with the order of 6 October 2016, the respondent notified additional issues in dispute on 14 October 2016. The appellant thereafter did not comply with the court’s order that, by 21 October 2016, it notify the respondent whether it objected or consented to the additional issues being made issues in the appeal. Instead, it sought further time on various occasions before ultimately advising its position by letter dated 16 November 2016. That letter consented to one aspect of the additional issues being added, but otherwise objected to the additional issues being made issues in the appeal. It did so on the basis that the council was going beyond the issues raised in council’s information request, or in the council officer’s report on the development application, or in the reasons for refusal. It was claimed that the council needed to “explain what has changed to justify the raising of those issues now”.
- [7]Some correspondence then passed between the parties as to whether, in the absence of the appellant complying with paragraph 3 of the order of 6 October 2016, the additional issues had become issues in dispute or whether, as the appellant contended, an order of the court was required. The matter next came before the court for a review on 24 November 2016. The respondent had, on 18 November 2016 provided a draft proposed consent order, which included an order including the additional issues as issues in the appeal. That was rejected by the appellant on 23 November 2016. At the review on 24 November 2016, the respondent was given leave to read and file an affidavit by Mr Osborne, a solicitor in the employ of the Brisbane City Legal Practice. Mr Osborne’s affidavit set out the exchange between the parties as to the additional issues. Leave was also granted to read and file an affidavit of Jennifer Sneesby, a senior urban planner with the council who is responsible for giving instructions in the matter. She deposed that she had reviewed the grounds of refusal, found them to be deficient and instructed the council’s solicitor to notify the additional issues. That did not satisfy the appellant.
- [8]The dispute in relation to the scope of the issues was set down for hearing on 6 December 2016. The respondent notified an amended list of additional issues (which raised additional provisions of the planning scheme in relation to the same subject matter) and filed the subject application, on 28 November 2016, supported by brief affidavits from each of Mr Beard (a consultant traffic engineer), Mr Kennedy (a consultant heritage expert) and Mr Perkins (a consultant planner). Those consultants had been engaged shortly after the commencement of the appeal. Each had reviewed the grounds of refusal and expressed a view, in brief terms, that the issues in the appeal should be broadened in the way proposed by the respondent, in relation to their respective fields of expertise, so as to ensure that all relevant aspects are considered. The filing and serving of the application and supporting material did not cause the appellant to withdraw its opposition prior to the hearing on 6 December 2016.
- [9]The appellant’s stated objection did not contend that the issues sought to be raised by the Council were irrelevant to its development application or that it would be prejudiced, in preparing its case, if the issues were expanded as proposed at this early stage. It did not file any affidavit material in response to the application. Rather, its objection up to 6 December 2016 was substantially based upon the fact that the additional issues went beyond the reasons which the Council had given in its decision notice.
- [10]On the hearing of the application, the solicitor for the appellant contended that, since, by reason of s 335(1) of the Sustainable Planning Act 2009 (Qld) (“SPA”), the reasons for refusal were required to be stated in the decision notice, the issues in the appeal are, as a consequence, those reasons and that the scope of the council’s case is therefore limited to the reasons for refusal, in the absence of an order from the court to the contrary. Further, it was submitted that in order to obtain leave, the council should explain why the issues now sought to be raised were not part of the reasons for refusal when the decision notice was given.[1]
- [11]As was submitted on behalf of the respondent on the hearing of the application on 6 December however, those contentions do not sit comfortably with the nature of an appeal to this court which, by reason of s 495(1) of the SPA, proceeds as a hearing anew. In the present context, that means a consideration, anew, of the development application. The question is not whether the Council erred when making its decision. Rather, the question is whether, at the time the appeal is heard and determined, the court is satisfied that the development application ought be approved. The appellant bears the onus.[2] There is nothing in SPA which expressly limits the attitude which the Council may take in an appeal of that kind.
- [12]The legislation permits appeals to be brought in circumstances where the Council, as assessment manager, has failed to make a decision within a certain time (a deemed refusal).[3] In those circumstances, a Council will need to formulate its attitude, for the first time, after the appeal is commenced. Even in circumstances, where, as here, the Council has made a decision against which there is an appeal, it is not uncommon for the Council to reassess its attitude in light of an appeal. It would be surprising if it did not. It is also neither unusual nor untoward for such a council to obtain the benefit of further expert advice. A Council which initially refused a development application, may, in the course of an appeal, decide to support it. Conversely, a Council which approved a development application may choose to support an adverse submitter appeal to which it is a respondent.[4] There is also longstanding authority for the proposition that a Council which has refused an application may, in responding to an applicant appeal which proceeds as a hearing anew, contend for the same conclusion, but for different reasons.[5]
- [13]In Chalk v Brisbane City Council (supra), for example, an appeal against the refusal of a rezoning application was dismissed on the basis not of the reasons for refusal stated by the Council in its refusal letter, but on the basis of additional reasons put forward by the Council, for the first time, on the hearing of the appeal. It may be noted that the legislation in that case also required the Council to state the grounds of its decision.[6]
- [14]When confronted with this line of authority on 6 December 2016, the solicitor for the appellant acknowledged that he had not considered whether there was any relevant distinction between the statutory provisions which applied in those cases and the relevant provisions of SPA by which the earlier authorities could be distinguished. He was given the opportunity to provide supplementary written submissions, and the Council was given the opportunity to reply to any such submissions.
- [15]On 6 December 2016 the solicitor for the appellant also raised, for the first time, a complaint about the particulars of some of the issues sought to be added. The respondent was ordered to provide particulars of some paragraphs, which it did on 13 December 2016. On 19 December 2016, the appellant advised the respondent that it no longer objected to the additional issues being included and accordingly would not be providing any supplementary written submissions in respect of the matters raised at the hearing on 6 December. Orders were then made on 10 January.
- [16]In support of the respondent’s application for costs, it was submitted that the subject application was necessitated by the appellant’s misguided position which it maintained to the hearing on 6 December 2016, but which it ultimately abandoned, with the consequence that the Council unnecessarily incurred costs in its successful application.
- [17]In seeking to resist an order, the appellant submitted that:
“For better or for worse, the effect of the court’s order of 6 October 2016 was that:
- A further order of the court was required if a party sought to add issues in dispute in the proceeding; and
- An application was required, together with supporting material, to demonstrate to the court and the appellant that, at the very least, the issues sought to be raised are relevant.”
- [18]The appellant characterised the respondent’s application as one seeking an indulgence, so as to add new issues. That is, strictly speaking, correct. Accepting that a council, in resisting an appeal of this kind, is not restricted to its reasons of refusal, the court nevertheless has the power to make an order, in the appeal, which defines the scope of the issues.[7] That is usually done at an early stage, and serves to, amongst other things, militate against the potential for the parties to be taken by surprise at a later time. The court did so in this case by the order of 6 October 2016. That order gave the respondent the opportunity to notify additional issues but did not, in terms, provide that any additional issues notified by the respondent would automatically become issues in the appeal, even in the absence of opposition from the appellant. A further order was required. That is not to say however, that the respondent needed to explain why the additional issues were not part of the reasons for refusal in order to justify such an order.
- [19]The order of 6 October 2016 also provided for the appellant to give notice as to whether it objected to or consented to the additional issues being made issues in the appeal. Had the appellant notified its consent, then the necessary order could simply have been obtained at minimal, if any, additional expense. For example, an order could have been made at the next scheduled review of the appeal. It was the appellant’s objection to the inclusion of additional issues which was the substantial and operative cause of the costs incurred in the subject application.
- [20]The appellant contended that an application, with supporting material, was required in order to at least demonstrate the relevance of the additional issues. The lack of demonstrated relevance was not, however, the stated basis for the appellant’s opposition prior to 6 December 2016, to the inclusion of the additional issues as issues in dispute.
- [21]At the hearing in 6 December 2016, the solicitor for the appellant contended that, in some respects, there were insufficient particulars to make a judgment about relevance. It was submitted, for the appellant, in seeking to resist the costs application, that whilst the respondent was ultimately successful in its application, that was in consequence of the provision of further and better particulars and the appellant’s subsequent withdrawal of its opposition after considering those particulars. It should be remembered however, as the appellant’s solicitor acknowledged in the course of argument on 6 December 2016,[8] that a lack of particulars was not the stated basis for the appellant’s opposition to the additional issues, at least until after counsel for the respondent had made oral submissions at the hearing on 6 December. The complaint as to particulars related to part only of the additional issues. Further, a request for particulars could have been made and responded to without the respondent being put to the expense of the subject application.
- [22]It was also submitted, for the appellant, that it had acted reasonably at all times. In particular:
- When the appellant received the respondent’s draft order on 18 November 2016, it did not have the benefit of the supporting material or the further and better particulars. It is noted that the additional issues were subsequently amended, in any case, on 28 November 2016;
- Once the appellant had considered the supporting material, together with the further and better particulars, it withdrew its opposition to the application; and
- Following the appellant’s withdrawal of its opposition, it consented to the making of the January order.
I am mindful that the respondent amended its additional issues on 28 November 2016, but that did not appear to have had any consequence in terms of the application or the attitude taken by the appellant to 6 December 2016.[9] The appellant had the opportunity to consider the supporting material, but did not withdraw its opposition prior to 6 December 2016. Indeed on 6 December 2016, its solicitor criticised the “bare bones” quality of the material.[10] It has already been observed that no complaint about particulars was made prior to 6 December 2016.
- [23]The withdrawal of the appellant’s opposition followed it being confronted, in the course of 6 December 2016, with the submissions for the respondent, including reference to the line of authority discussed earlier in these reasons. The appellant ultimately, in effect, abandoned its stated position and chose to consent to the issues being made issues in the appeal upon the receipt of particulars requested for the first time at the hearing of the application. Had that attitude been taken at an earlier stage, the costs associated with the subject application could have been obviated.
- [24]In the circumstances, the appellant should pay the respondent’s costs of and incidental to the application in pending proceeding.
Footnotes
[1] T1–17, 18.
[2] Section 493(1) of SPA.
[3] Section 461(1)(e) of SPA.
[4] Bowden & Ors v Brisbane City Council [1991] QPLR 271.
[5] Chalk v Brisbane City Council (1966) 13 LGRA 228; Walker & Clarke v Noosa Shire Council [1982] QPLR 400 at 405; Walker v Noosa Shire Council [1983] 2 Qd R 86 at 88 and Chomicz & Anor v Gold CoastCity Council [1986] QPLR 313.
[6] Chalk v Brisbane City Council (supra).
[7] Rule 19(5)(c) of the Planning and Environment Court Rules 2010.
[8] T1–25.
[9] The amendments included paragraphs 5(a) and (b) of which particulars were sought at the hearing on 6 December 2016.
[10] T1–24.