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- Unreported Judgment
Wason v Gympie Regional Council (No 2) QPEC 12
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Wason v Gympie Regional Council (No 2)  QPEC 012
GYMPIE REGIONAL COUNCIL
4349 of 2016
Planning & Environment Court
Application for costs
Planning & Environment Court of Queensland, Brisbane
Ex tempore on 15 March 2018
15 March 2018
ENVIRONMENT AND PLANNING – COSTS – Where the applicant brought a successful planning appeal against the respondent – Where the applicant subsequently brought an application for costs – Whether the court ought exercise its discretion to award costs
Sustainable Planning Act 2009 (Qld) ss 457, 999
Uniform Civil Procedure Rules 1999 (Qld) r 211
Ferreyra & Ors v Brisbane City Council & Anor (No 2)  QPEC 13
Wason v Gympie Regional Council  QPEC 34
S Ure for the respondent
Connor O'Meara for the applicant
King & Company for the respondent
- This is an application for costs pursuant to s 457 of the Sustainable Planning Act 2009 (Qld) (“SPA”). In the circumstances before me it is the wording of s 457 immediately before 19 May 2017 which applies (SPA s 999).
- Relevantly, s 457 provided:
- (1)Costs of a proceeding or part of a proceeding including, an application in a proceeding, are in the discretion of the court.
- (2)In making an order for costs, the court may have regard to any of the following matters –
- the relative success of the parties in the proceeding;
- (i)whether a party has acted unreasonably in the conduct of the proceeding…
- In his amended application, the appellant seeks alternative orders. Firstly, the costs of and incidental to the proceeding on the standard basis. Secondly, the costs of and incidental to the proceeding from 18 May 2017 on the standard basis. Thirdly, the costs of and incidental to the proceeding from 18 May 2017, limited to issues raised by the respondent with respect to good quality agricultural land (“GQAL”) on the standard basis.
- As Bowskill QC DCJ (as she then was) observed of s 457 of SPA in the form quoted above:
“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. (Ferreyra & Ors v Brisbane City Council & Anor (No 2)  QPEC 13 at ).”
- The proceeding the subject of the application is a successful appeal against the decision of the respondent to refuse an application for a development permit for reconfiguring a rural lot (1 into 2) at Mothar Mountain near Gympie. No issue is taken by either party with the characterisation of the issues in dispute between the parties in the following terms:
“Essentially the respondent contends that the proposed reconfiguration should be refused because it will not preserve good quality agricultural land (“GQAL”) and further that it will not preserve the land as productive agricultural or rural land.” (Wason v Gympie Regional Council  QPEC 34 at .)
- The first basis on which costs are sought is that the appellant was “completely successful with respect to each and every disputed issue in the appeal”. This assertion is not correct. The appellant alleged that the land in question was only suitable for grazing and not GQAL. The court accepted that the land contained GQAL on both proposed lots, and that there was sufficient water available for each lot, such that the limited capacity to grow viable commercial crops on the land would remain. The court preferred the evidence of the respondent’s expert, Dr Matthew, in this regard, but found that the reconfiguration would nonetheless preserve the GQAL as productive agricultural land. This basis for a costs order is not made out.
- The second basis on which costs are sought is that the respondent has acted unreasonably. The respondent’s approach to the appeal is criticised. It is submitted that it ran “a weak refusal case”, in circumstances where it did not act on the advice of its officers and sought to misapply the relevant provisions of its own planning scheme concerning the specified relevant minimum lot size. It is also criticised for not seeking to resolve the appeal or narrow the ambit of the dispute between the parties. The alternative costs orders seek costs on and from the date of exchange of the further statements of evidence, 18 May 2017.
- Conversely, the respondent submits that it was legitimately concerned with preserving productive rural and agricultural land and also with the loss of GQAL through fragmentation. These concerns are reflected in its planning scheme. They are summarised in the judgment referred to above. The appellant is criticised for failing to comply with his obligations to disclose water licences benefiting the land, pursuant to r 211 of the Uniform Civil Procedure Rules 1999 (Qld), and to make them available to the GQAL experts for consideration during the joint meeting process. It is the case that these water licences proved pivotal in establishing that land on both proposed lots was GQAL and suitable for small-scale commercial cropping.
- I am satisfied that the respondent’s concerns about the fragmentation of GQAL were genuine and its focus on maintaining rural land in productive units was reflective of a policy underlying its planning scheme. Both independent experts called by it supported the respondent’s position, Dr Matthew emphasised the difficulties with small farming units in terms of economies of scale and operational flexibility, and Mr Adamson, the planner called on behalf of the respondent, expressed a similar view.
- Although the position taken by the respondent in arguing its planning scheme mandated a minimum area for proposed lots was untenable, the satisfactory resolution of the appeal also required a favourable finding in terms of the proposed development not resulting in the loss of GQAL through alienation or fragmentation. In successfully demonstrating that both proposed lots were effectively GQAL and in arguing a case in terms of alienation or fragmentation, supported by independent experts, I do not accept that the respondent has acted unreasonably.
- The respondent was unsuccessful in the appeal, however, in circumstances where it held genuine concerns about the proposed development and successfully demonstrated that the land was, in fact, GQAL, it is not appropriate that I exercise my discretion to award costs.
- I dismiss the application.
- Published Case Name:
Lee Wason v Gympie Regional Council (No 2)
- Shortened Case Name:
Wason v Gympie Regional Council (No 2)
 QPEC 12
15 Mar 2018