Ko v Brisbane City Council (No 2)
[2018] QPEC 49
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- Unreported Judgment
- Ko v Brisbane City Council (No 2)[2018] QPEC 49
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Ko v Brisbane City Council (No 2)[2018] QPEC 49
Ko v Brisbane City Council (No 2)[2018] QPEC 49
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Ko v Brisbane City Council & Anor (No.2) [2018] QPEC 49 |
PARTIES: | SUSAN KO v BRISBANE CITY COUNCIL (Respondent) and ROBYN STUDLEY (Co-respondent by election) |
FILE NO/S: | 1065/17 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application for Costs |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 18 October 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 October 2018 |
JUDGE: | Williamson QC DCJ |
ORDER: | The Co-respondent by election pay the Appellant’s costs of and incidental to the proceeding on and from 8 June 2018, including the costs of and incidental to the application filed 7 September 2018. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – costs – appeal against refusal of an application for a material change of use for multiple dwelling in the LMR zone – where appeal allowed – whether discretion to award costs should be exercised under s.457(1) of Sustainable Planning Act 2009 (Qld). |
LEGISLATION: | Sustainable Planning Act 2009, ss.457(1) and (2) |
CASES: | Nadic Investments Pty Ltd v Townsville City Council & Anor [2015] QPEC 48 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: | J Dillon for the Appellant No appearance for the Respondent J Hewson for the Co-respondent by election |
SOLICITORS: | Galleon Law Group for the Appellant No appearance for the Respondent Jason Nott Solicitors for Co-respondent by election |
Introduction
- [1]On 13 July 2018, I published my reasons for judgment in this applicant appeal. As is made clear in the reasons, I held that Ms Ko had discharged her onus and the appeal would, in due course, be allowed. The appeal was against a decision of the Council’s delegate to refuse an application for a material change of use for a multiple dwelling (four units) on land situated at 29 Fairy Street, Moorooka (the Land). Final orders were made on 4 September 2018 allowing the appeal and approving Ms Ko’s development application, subject to conditions.
- [2]Ms Ko has applied for an order that the Co-respondent by election, Ms Studley, pay the costs of the proceeding on and from one of three nominated dates. The order is sought under s.457 of the Sustainable Planning Act 2009 (SPA)[1]. It is contended on behalf of Ms Ko that an order for costs should be made against Ms Studley having regard to:
- (a)Ms Ko’s success in the appeal;
- (b)the relative strength of each party’s case; and
- (c)Ms Studley’s conduct in the proceeding.
- [3]No order for costs is sought by, or against, the Council.
- [4]Ms Studley contends that each party should bear their own costs.
Background to the application for costs
- [5]Most of the relevant background is set out in my reasons for judgment published on 13 July 2018 at paragraphs [1] to [10]. It is however necessary to supplement that background with additional matters emerging from the evidence for this application. The relevant background is as follows.
- [6]In February 2016, Ms Ko made an application to the Council for approval to redevelop the Land. The form of development proposed at this time comprised a three storey multiple dwelling with four units. The application was impact assessable and attracted three properly made submissions. One of the submissions received by the Council was made on behalf of Ms Studley. The submission was dated 20 October 2016.
- [7]The submission made on behalf of Ms Studley identified that she owned a unit in the property adjoining the Land and objected to the development application. An examination of the submission reveals that the following issues were raised in support of the objection:
- (a)the proposed development would set a regrettable precedent;
- (b)the proposed development, if approved and constructed, would impact on the value of adjoining properties;
- (c)the proposed development fared poorly in respect of the ‘minimum’ performance criteria in flagrant disregard of the adjoining property, in that the development:
- (i)would adversely affect the right to privacy and quiet enjoyment;
- (ii)would adversely affect the entitlement to direct and natural sunlight;
- (iii)would facilitate unacceptable overlooking into adjoining properties;
- (iv)would adversely affect the reasonable expectation to views and/or outlook;
- (v)would not be in keeping with the low density residential character of the neighbourhood;
- (vi)did not conform to the planning requirements with respect to height, bulk and form; and
- (vii)provided inadequate setbacks and landscape screening.
- [8]On 24 February 2017, the Council’s delegate decided to refuse Ms Ko’s development application. She elected to exercise her right of appeal under s.461(1)(a) of SPA against the refusal. The development refused by the Council’s delegate was originally designed as three stories in height with double garages located on the ground floor of each unit. The garages were accessed via a driveway running parallel to the northern boundary of the subject land. The built form essentially turned its back to the southern boundary, being a common boundary with Ms Studley’s property. A setback in the order of 2 to 2.56m was provided to the southern boundary.
- [9]This appeal against the delegate’s refusal was commenced on 23 March 2017. A notice of election was filed by Ms Studley on 12 April 2017.
- [10]It can be inferred from the affidavit material before the court that Ms Ko negotiated with the Council for some period after commencing the appeal in an attempt to reach a resolution. As is common, the negotiations between Ms Ko and the Council led to changes being made to the development application.
- [11]In response to an amended form of development, the Council prepared a draft suite of conditions and circulated them to the other parties on or about 25 September 2017. The affidavit material does little to explain what then occurred between 25 September 2017 and 20 February 2018, save that an application was made on behalf of Ms Ko, with supporting material, to make a minor change to the development application. The application was said to be opposed by Ms Studley, but she did not lead any evidence, or make any submission in support of that position.
- [12]On 20 February 2018, his Honour Judge Jones directed that the appeal proceed to be heard and determined on the basis of amended plans of development. Three substantive changes were made to the proposed development. I identified the three changes in paragraph [5] of my reasons for judgment published on 13 July 2018. The changes made to the proposal included a reduction in the height of the development from three storeys to a mix of two to three storeys. The two storey component was proposed for that part of the built form closest to the street frontage. The layout of the development was also flipped so that the driveway accessing resident parking was relocated from the northern to the southern boundary. The underlying purpose of the changes was to mitigate impacts of the development and respond to the issues raised in the delegate’s reasons for refusal.
- [13]The change to the application represented a point in time when both the Council and Ms Studley were called upon to reconsider their respective positions in the appeal. The amendments were favourably received by the Council. It formally notified the other parties that it would no longer contend for refusal. This was not however the case for Ms Studley. The order of 1 March 2018 required Ms Studley to file and serve a notice of the issues she wished to raise in response to the amended application. The notice was filed on 22 March 2018 and contained seventeen reasons for refusal. The reasons for refusal were a re-production of the delegate’s reasons for refusal applying to an earlier iteration of the development application.
- [14]The issues nominated on behalf of Ms Studley alleged conflict with 32 provisions of City Plan 2014. The alleged conflicts were said to arise as a consequence of the bulk, height and scale of the amended development proposal. Allegations were also made about the nature and amount of landscaping proposed and impacts on privacy.
- [15]Orders of the court required the parties to nominate, in writing, the experts each intended to call at the hearing of the appeal. Ms Studley did not nominate any experts in support of the seventeen reasons for refusal identified on 22 March 2018.
- [16]Only one joint report was prepared for the appeal, being a report of the town planning witnesses. The report was completed on 18 May 2018 and examined the seventeen reasons for refusal notified by Ms Studley. The report contains no points of disagreement. The two town planning witnesses each expressed the view that the matters raised by Ms Studley in her issues document did not warrant refusal of the development application. This view was expressed having regard to, inter alia, the fact that a central planning provision had been the subject of an amendment, which favoured the development and supported an approval. The central provision was overall outcome (7) of the Low-medium density residential (LMR) zone code.
- [17]The matter proceeded to hearing for three days commencing on 11 June 2018. Prior to the commencement of the hearing, Ms Ko’s solicitor made two written offers to Ms Studley to resolve the appeal.
- [18]The first offer to resolve was made by email transmission dated 9 March 2018. Ms Ko offered to settle on the basis that the appeal be allowed, the amended development application be approved and each party bear their own costs. The offer was made against the background that:
- (a)the court had ordered on 20 February 2018 that the appeal proceed to be heard and determined on the basis of the amended development plans;
- (b)the court ordered on 2 March 2018 that Ms Studley file and serve a notice of the issues she wished to raise in the appeal by 16 March 2018;
- (c)Ms Studley was made aware on or about 25 September 2017 that the Council’s position in the appeal had changed – the Council circulated a draft suite of conditions for consideration in late September 2017, consistent with its view that the amended development application should be approved; and
- (d)Ms Studley did not have, at that time, the benefit of the joint report of the town planning witnesses.
- [19]Ms Studley did not respond to the offer of 9 March 2018. No credible explanation was given as to why she did not respond to the offer.
- [20]A second offer to resolve the proceeding was made by Ms Ko’s solicitor on 31 May 2018. It was sent by email at 2:25 pm. The offer to settle the proceeding contemplated that the appeal would be allowed and the amended development application be approved subject to the draft conditions circulated by Council on 25 September 2017. Each party was to bear its own costs. The offer was made after the appeal was listed for hearing and after the date the town planning witnesses had completed their joint report. The town planning joint report was expressly referred to in the offer. The offer was said to be open for acceptance until 10:00 am on 1 June 2018.
- [21]Ms Studley did not respond to the second offer to settle. The offer lapsed the day after it was made. No credible explanation was given for Ms Studley’s silence in response to the offer. The point was made however that Ms Studley did not have copies of the joint report of the town planning witnesses, nor the further statement of evidence of Mr McDonald, prior to the time the offer lapsed. It was, as a consequence, submitted that Ms Studley was not in a position to accept or reject the second offer made on behalf of Ms Ko.
- [22]As my reasons for judgment dated 13 July 2018 record, Ms Studley did not nominate any experts, nor did she call any expert evidence in support of her case during the appeal. No evidence was led as to why she was concerned about the amended proposal from a planning perspective. I was not referred to Ms Studley’s submission at any stage of the merits hearing by Ms Hewson.
- [23]Ms Studley’s case was advanced at the hearing by her counsel, Ms Hewson, on the premise that the evidence required to advance Ms Studley’s case could be adduced through the cross-examination of the experts nominated by Council and Ms Ko. That did not occur. Each of the witnesses confirmed in cross-examination that they maintained their opinions as previously expressed, all of which were favourable to the amended development application and justified an approval in the circumstances.
- [24]Further, none the experts who gave evidence were cross-examined about issues with respect to precedent; property values; privacy and quiet enjoyment; direct and natural sunlight; overlooking; views and outlook; setbacks; and landscape screening. Each of these matters were raised in Ms Studley’s submission to the Council in response to the development as originally proposed.
- [25]At the time the evidence was completed, each of the seventeen issues notified by Ms Studley remained live issues for determination. This however changed after counsel for the Council and counsel for Ms Ko addressed the court in final submissions. During the course of her oral submissions, Ms Hewson narrowed the issues her client relied upon to warrant refusal of the development application. She submitted that a decision to approve the development application would conflict with 8 provisions of City Plan 2014. In addition, it was submitted that s.326(1) of SPA mandated refusal of the development application because it had not been established there were sufficient grounds to justify an approval despite plainly identified conflict with City Plan 2014.
- [26]The central issue to be determined was whether the proposal, being two to three storeys in height, and larger in scale than existing development in Fairy Street, conflicted with City Plan 2014. Ms Studley’s case in this regard turned upon one provision in City Plan 2014, namely overall outcome (7)(a) of the LMR zone code. The provision called for an examination of whether the development was within easy walking distance of a public transport node. It was common ground that the development was located near a public transport node (Moorooka Train Station). The argument turned on whether the walk from the Land to this node satisfied overall outcome 7(a), that is, whether the walk was an easy walking distance.
- [27]As the reasons for judgment published on 13 July 2018 make clear, I was satisfied that the proposal complied with overall outcome (7)(a) of the LMR zone code. This, in turn, meant the amended form of development, being two to three storeys in height, was encouraged in the area in which it was proposed and should have been reasonably anticipated by residents, including Ms Studley. Accordingly, I held that a decision to approve the application would not conflict with City Plan 2014.
- [28]Further, I was satisfied there were sufficient grounds to justify an approval of the application despite any conflict with City Plan 2014. The balancing exercise was undertaken in the reasons for judgment published 13 July 2018 on the basis that conflict with City Plan 2014 had been established as alleged, and was assumed to be significant in nature. There was a compelling ground that justified an approval of the application despite any conflict. Overall outcome (7) of the LMR zone code had been amended by Council in a way that was favourable to the proposed development, and supported approval. Ms Studley did not suggest to the contrary.
- [29]It is unclear on the evidence when the amendment to City Plan 2014 was known to Ms Studley or her legal team. At the latest, it can be inferred that she had notice of the amendment on and from 7 June 2018, being the date the joint report of the town planning witnesses was provided to her solicitor. That document refers to the amendment made by Council to the LMR zone code.
The costs power
- [30]This appeal was commenced on 23 March 2017, being a date that preceded the commencement of the Planning Act 2016. As a consequence, sections 311(1)(a) and (2)(a) of that Act provide SPA continues to apply to these proceedings. The relevant power therefore to make an order as to costs is the power conferred under SPA.
- [31]The court’s power to grant costs under SPA is contained in Chapter 7, Division 7. Relevant provisions of SPA with respect to costs were amended on 19 May 2017. Section 999 of SPA provides that those amendments do not apply to the present appeal as it was commenced prior to 19 May 2017. Accordingly, s.457 of SPA in force prior to the amendments of 19 May 2017 contains the court’s power with respect to costs in this appeal.
- [32]The power to make an order for costs in this appeal is conferred by s.457(1) of SPA 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.”
- [33]As has been recognised[2], the discretion to make an order for costs under s.457(1) of SPA is a broad one. The discretion is to be exercised judicially, but without any presumption that costs should follow the event, or otherwise, on the basis that there is some qualified protection against an adverse costs order.
- [34]The matters the court may have regard to in exercising the discretion include, but are not limited to the matters listed in s.457(2) of SPA. Relevantly, the matters include: (1) the relative success of the parties in the proceeding; (2) whether a party commenced or participated in the proceeding without reasonable prospects of success; (3) whether a party has acted unreasonably leading up to the proceeding; and (4) whether a party has acted unreasonably in the conduct of the proceeding.
Should there be an order for costs?
- [35]I am satisfied that an order for costs should be made against Ms Studley. This is so for four reasons.
- [36]First, Ms Ko was wholly successful in her appeal. That success was enjoyed in circumstances where she was put to proof by Ms Studley in relation to seventeen reasons for refusal, none of which were supported by evidence and largely abandoned at the last possible opportunity in the trial. Issues were abandoned too late for Ms Ko and the Council to avoid incurring unnecessary costs.
- [37]Second, the success achieved by Ms Ko occurred in circumstances where the case advanced on behalf of Ms Studley did not have reasonable prospects of success. The case advanced by Ms Studley involved seventeen reasons for refusal that were not supported by evidence. A large number of issues were abandoned. As to the issues that did remain for determination by the court, the issues were weak reasons for refusal and did not reflect that sufficient attention had been given to the existence of grounds that may justify an approval despite conflict with City Plan 2014.
- [38]Central to the issues that remained for determination was a contention that the height of the amended development in storeys was in conflict with City Plan 2014 and there were no grounds to justify an approval despite such conflict. The case run on behalf of Ms Studley in this regard did not come to grips with the following matters that were not only relevant to the issue of building height, but also of significance to the existence of sufficient grounds, namely:
- (a)the amended proposal was a two to three storey unit development in a zone and precinct of the planning scheme where development of this nature and form was not only envisaged, but expressly encouraged;
- (b)the amended proposal complied with the relevant acceptable solution in the planning scheme for building height – the building did not exceed 9.5 metres in height;
- (c)it was not contended that any of the usual indicators of overdevelopment were present as a consequence of the height of the amended development proposal;
- (d)it was not contended that the height of the amended development proposal would give rise to any hard impacts on amenity; and
- (e)the central planning scheme provision relied upon to establish conflict as a consequence of the number of storeys of the development had been overtaken by events – the relevant provision of the LMR zone code was amended in a way that was favourable to the development and supported approval in the event conflict was established with City Plan 2014.
- [39]I am satisfied that Ms Studley participated in this proceeding without reasonable prospects of success. The weight I give to this consideration is significant given there was no evidence before me to establish that Ms Studley received, and acted upon, legal advice contrary to the view I have reached as to the strength of her case. Further, there is no evidence that Ms Studley acted upon:
- (a)the advice of an expert (such as a town planner) in nominating her issues of 22 March 2018 in response to the amended proposal; and
- (b)advice about prospects of success in the appeal, particularly after she had received the town planning joint report on 7 June 2018.
- [40]Third, Ms Studley’s conduct of, and leading up to the hearing, cannot in my view be described as reasonable for the purposes of ss.457(2)(h) and (i) of SPA. This is, in my view, confirmed when the background to the appeal (set out at paragraphs [6] to [29] of these reasons) is considered as a whole.
- [41]Further, as I have already said above, Ms Studley’s case was one that did not enjoy reasonable prospects of success. The case was not supported by evidence. Ms Ko was put to the expense of disproving seventeen reasons for refusal calling in aid 32 provisions of City Plan 2014. The decision to pursue the litigation in these circumstances was unreasonable and put Ms Ko and the Council to unnecessary expense.
- [42]It is clear from the background that this could have been avoided, at least in part, if Ms Studley had complied with her implied undertaking to the court and the other parties to the proceeding. Section 10(2) of the Planning & Environment Court Act 2016 expressly recognises that parties to a P&E court proceeding impliedly undertake to the court, and each other, to proceed in an expeditious way. This implied undertaking requires, in my view, each of the parties to a proceeding to litigate only the real issues in dispute without undue delay, expense and technicality.
- [43]What does this mean, in practical terms, for a submitter contending for the refusal of a development application? The implied undertaking requires a submitter in this position to, inter alia, notify issues that are directed at the question of approval or refusal. It also requires a submitter to carefully consider the requirements of the statutory assessment regime, including, if relevant, whether there are sufficient grounds to justify an approval in the circumstances of the case.
- [44]Importantly, an assessment will need to be made by a submitter as to whether an issue calls for refusal or, alternatively, is a matter for conditions only. This assessment will need to take into account, where relevant, the views of expert witnesses and whether those views are supportable having regard to relevant planning documents. This assessment is not fixed at a single point in time. A submitter will need to ensure that issues are kept under review, particularly having regard to changes that are made to a development application and information which comes to light as the case progresses to hearing.
- [45]In this case, there were at least four occasions when Ms Studley’s position should have been the subject of review in order to take into account, and respond to, new material or new developments in the case. The four points in time were: (1) in late September 2017 after the Council had promulgated a draft suite of conditions in support of the amended proposal; (2) in late March 2018 when Ms Studley was required to nominate her issues in the appeal, if any, to respond to the amended development proposal; (3) in early June 2018 upon receipt of the Council’s and Ms Ko’s written evidence for the trial; and (4) at the commencement of the trial when a list of issues had to be prepared and tendered in accordance with Practice Direction 1 of 2018.
- [46]As the background reveals, issues were not abandoned by Ms Studley until after the close of evidence and submissions were made on behalf of the Council and Ms Ko. This was too late in the proceeding. No credible explanation was offered as to why issues were not abandoned by Ms Studley earlier in the proceeding.
- [47]Fourth, it was submitted on behalf of Ms Studley that there were a number of reasons why each party to the appeal should bear their own costs. The matters relied upon were confirmed by Ms Hewson in oral submissions to be:
- (a)Ms Studley has a legitimate interest in the subject of the appeal given she has an interest in the neighbouring property;
- (b)the case run at trial was a narrow one and was arguable;
- (c)the central issue in the appeal was one about which reasonable minds may differ; and
- (d)it was reasonable for Ms Studley to reject the offers to settle.
- [48]As to each of these matters:
- (a)I accept that Ms Studley has a legitimate interest in the outcome of the appeal, being the owner of a unit in the adjoining property;
- (b)I accept that a narrow case was run at trial, but by the time the issues were narrowed, it was too little, too late – the issues notified were not narrowed until the evidence closed and Ms Ko had been put to the expense of meeting reasons for refusal that were not relied upon (or put another way, she was put to the expense of defending the application against issues that were not the real issues to be determined);
- (c)I accept that the case run on behalf of Ms Studley was arguable, but it did not enjoy reasonable prospects of success - it was a weak case and there was no credible evidence to support it;
- (d)I accept that the appeal turned on matters about which reasonable minds may differ; and
- (e)whilst I have some misgivings about Ms Studley’s lack of response to offers made on behalf of Ms Ko, I do not accept that it was imprudent for the offers to be rejected in the circumstances. The first offer was made prior to the receipt of the joint report of the town planning experts. The second offer was open for a period of less than 24 hours in circumstances where Ms Studley’s legal team did not have a copy of the town planning joint report referred to and relied upon in the offer.
- [49]I was not persuaded that the submissions made on behalf of Ms Studley, even if accepted without qualification, outweighed the three factors to which I have referred above such that each party should bear their own costs. More particularly, the submissions made on behalf of Ms Studley did not fairly acknowledge the compelling force of matters set out in paragraphs [36] to [46] above.
- [50]This does not however mean that an order for costs should include all of Ms Ko’s costs of and incidental to the proceeding. The costs should be limited to those costs incurred on and from 8 June 2018. It was at this time that Ms Studley was armed with: (1) the amended development proposal; (2) knowledge of the Council’s position with respect to the amended development proposal; and (3) the written evidence to be led at trial.
Conclusion
- [51]I am satisfied that it is appropriate that there should be an order for costs. The order will be limited to the costs incurred by Ms Ko on and from 8 June 2018. Costs are to be assessed on the standard basis. The costs are to include the costs of, and incidental to, this application for costs.
Footnotes
[1] In the form prior to the amendments of 19 May 2017.
[2] Nadic Investments Pty Ltd v Townsville City Council & Anor [2015] QPEC 48, [6]; Cox v Brisbane City Council (No 2) [2014] QPELR 92 at [2]-[3]; YFG Shopping Centres Pty Ltd v Brisbane City Council (No 2) [2015] QPELR 8 at [17]; and Hydrox Nominees Pty Ltd v Noosa Shire Council [2015] QPELR 168 at [3] and [30].