ML Parkway Pty Ltd v Townsville City Council (No.2)
[2025] QPEC 6
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- Unreported Judgment
- ML Parkway Pty Ltd v Townsville City Council (No.2)[2025] QPEC 6
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ML Parkway Pty Ltd v Townsville City Council (No.2)[2025] QPEC 6
ML Parkway Pty Ltd v Townsville City Council (No.2)[2025] QPEC 6
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | ML Parkway Pty Ltd v Townsville City Council (No.2) [2025] QPEC 6 |
PARTIES: | ML PARKWAY PTY LTD (ACN 664 118 209) (appellant) v TOWNSVILLE CITY COUNCIL (respondent) |
FILE NO/S: | 1772 of 2023 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal against refusal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 10 April 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers (written submissions dated 19 March, 2 April & 4 April 2025) |
JUDGE: | Williamson KC DCJ |
ORDER: | The application in pending proceeding, filed 14 February 2025, is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – Costs – where appeal against the respondent’s decision to refuse a development application – where the development application sought approval for a non-residential use (self-storage facility) in the Low density residential zone – where appeal resisted by the respondent – where appeal was successful – whether the respondent’s resistance of part of the appeal was, in part, frivolous or vexatious – whether the respondent failed to properly discharge its obligations in the proceeding – whether the power to make an order for costs under s 60(1) of the Planning and Environment Court Act 2016 is enlivened. |
CASES: | ML Parkway Pty Ltd v Townsville City Council [2024] QPEC 53 Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271 Sincere International Group Pty Ltd v Council of the City of Gold Coast (No. 2) [2019] QPELR 662 |
LEGISLATION: | Planning and Environment Court Act 2016, ss 10, 59 and 60 |
COUNSEL: | Mr M Connor (Solicitor) for the appellant Mr K Wylie for the respondent |
SOLICITORS: | Connor O'Meara for the appellant Townsville City Council, Legal Services for the respondent |
Introduction
- [1]Contrary to an officer’s recommendation, Council refused the appellant’s impact assessable development application seeking approval for a self-storage facility on land at Bushland Beach. This is an appeal against the refusal.
- [2]On 20 December 2024, after a contested hearing, I published reasons for judgment going to the question of approval/refusal: ML Parkway Pty Ltd v Townsville City Council [2024] QPEC 53 (the RFJ). At paragraph [145] of the RFJ, I indicated the appeal would be allowed in due course, with the development application approved subject to conditions. Consistent with this finding, final orders were made allowing the appeal on 3 February 2025. The orders had the effect of setting aside Council’s decision, which was replaced with a new decision to grant a conditional development approval.
- [3]Not content with a conditional development approval, the appellant filed an application in pending proceeding on 14 February 2025 seeking an order that Council pay part of its costs of the appeal. The appellant contends the power to make such an order is engaged because:
- Council’s reasons for refusal relating to character and visual amenity were frivolous or vexatious: s 60(1)(b) of the Planning and Environment Court Act 2016 (PECA); or
- Council did not properly discharge its responsibilities in the proceeding in so far as character and visual amenity issues are concerned: s 60(1)(i), PECA.
- [4]The application was opposed.
The RFJ
- [5]Before examining whether Council’s conduct in the appeal, including the substance of its case advanced at trial, engages (in part) ss 60(1)(b) and (i) of PECA, it is necessary to traverse, in summary terms, the RFJ.
- [6]The development the subject of the appeal is described at paragraph [15] of the RFJ. It is a modern self-storage facility, providing 135 storage units contained in 22 separate groupings of single storey buildings, with a gross floor area of 2,788m2. A use of this kind is undoubtedly non-residential in character. This point was significant given the land on which the development was proposed is included in the Low density residential zone of Council’s planning scheme.
- [7]It was uncontroversial that non-residential uses are anticipated in the Low density residential zone provided specific controls with respect to scale, form and function are met. Performance outcome PO18 of the Low density residential zone code was relevant in this regard. It is set out at paragraph [42] of the RFJ and is in the following terms:
For assessable development – where a non-residential or tourist accommodation use | |
PO18 Non-residential uses are established only where:
| No acceptable outcome is nominated.
Editor’s note – Applicants should have regard to Economic impact assessment planning scheme policy no. SC6.5 for guidance on how to demonstrate compliance with this performance outcome. |
- [8]Performance outcome PO18 comprises a number of cumulative elements: RFJ [84]. To comply with the provision, each element must be satisfied. The first element calls for an examination of a proposal and its compatibility with local character and amenity.
- [9]Council alleged non-compliance with each element of Performance outcome PO18.
- [10]Overall outcome 3(h) of the Low density residential zone code has similar work to do as PO18. The provision is set out at paragraph [38] of the RFJ and states:
- non-residential uses only occur within the zone where they primarily support the day-to-day needs of the immediate residential community, do not reasonably detract from the residential amenity of the area and are not better located in nearby centre zones;
- [11]Like PO18, the overall outcome has a number of elements that must be met to demonstrate compliance with the provision overall. Council alleged non-compliance with each element, the second of which calls for an examination of the proposal and whether it will detract from the residential amenity of ‘the area’.
- [12]PO18 and overall outcome 3(h) of the Low density residential zone code expose that the Low density residential zone ‘may’ include non-residential uses, provided a particular balance is achieved. This was discussed at paragraphs [43] to [45] of the RFJ:
- "[43]Performance outcome PO18 represents one of two tests prescribed in the zone code to control the form, scale and function of non-residential uses in the Low density residential zone. The second test is contained in overall outcome 3(h) of the same zone code. The tests are, self-evidently, expressed in different terms but seek to strike a balance. In the Low density residential zone: (1) a ‘high level of residential amenity’ is intended (s 6.2.1.2(2)(d)); and (2) communities are intended to be ‘accessible’ and ‘well serviced’ (s 6.2.1.2(2)(e)). Items (1) and (2) give rise to a point of tension; for a residential community to be well serviced, it necessarily requires access to non-residential uses. Uses of this kind have the potential to adversely impact amenity and character. It is this tension that calls for a balance to be struck.
- [44]How is the balance struck in this planning scheme?
- [45]The express terms of the planning scheme create an expectation that non-residential uses may be approved in the Low density residential zone provided specific requirements are met (principally overall outcome 3(h) and Performance outcome PO18). The requirements seek to control the scale, form and function of non-residential uses in the zone. The planning purpose or objective for doing so is to make provision for low density residential communities to have convenient access to services in the zone (i.e. be well serviced as envisaged by s 6.2.1.2(2)(e)) but only to a point. Access to services is not intended to come at the expense of residential character and amenity.”
- [13]The disputed issues for the appeal were cast at the ends of the spectrum, that is, Council alleged non-compliance with each limb of PO18 and overall outcome 3(h). The appellant alleged compliance with each part of these provisions. The true position, as can be seen from the RFJ, is somewhere toward the middle of the spectrum. Non-compliance was established with part of PO18, namely subparagraph (b) and part of the overall outcome. The non-compliance related to the need the proposed use would service: RFJ [95].
- [14]Council contended the appellant’s development application should be refused for three reasons. The disputed issues were identified at paragraphs [48] to [50] of the RFJ as follows:
- "[48]“Council contended the development application ought be refused for three reasons. The reasons can be identified as follows (Ex.22, paragraphs 3 and 31):
- The proposed development is inconsistent with the character and amenity outcomes sought for the Low density residential zone, because of its scale, inconsistency with local character and failure to maintain high levels of residential amenity;
- The proposed development is inconsistent with the land use intentions for the Low density residential zone because it is a non-residential use that does not serve the day-to-day needs of the immediate residential community and is more appropriately located in another zone; and
- There are relevant matters that support refusal, in particular, the number and content of properly made submissions and the absence of planning need.
- [49]Paragraphs 1 and 2 assume non-compliance is established with the zone code, in particular, overall outcomes (3)(a), (c) and (h), and Performance outcomes PO10(d), PO18 and PO20.
- [50]Paragraph 3 has a particular role to play in the exercise of the discretion. It is relied upon to resist a submission to the effect that the discretion ought be exercised in favour of approval in the face of non-compliance with the planning scheme.”
- [15]A review of the evidence at trial in conjunction with the disputed issues reveals Council’s case reduced over time – it was responsive to new material, which included changes to the development application and the provision of draft conditions. The case advanced for refusal, as reflected in paragraphs [48] to [50] of the RFJ, is fairly characterised as focused and narrow having regard to all of the circumstances.
- [16]The appellant satisfied me that the issue stated in paragraph 1 above did not warrant refusal: RFJ [73].
- [17]In support of the character and amenity issue, Council relied upon the evidence of Mr Ovenden and Dr McGowan. They were of the view that paragraph 1 above was a valid reason warranting refusal. In arriving at this conclusion, the experts, having the benefit of photomontages and a suite of draft conditions proposed by the appellant, focused on those parts of the development that reinforce its non-residential nature. The relevant features were the large driveway, industrial gates, commercial signage and the concealing effect of landscaping, which were said to be an indicator that the use is inconsistent with the character and amenity of the locality, in particular Goicoechea Drive: RFJ [58]. These non-residential components of the development were clearly visible in the photomontages and supported the opinions expressed by Mr Ovenden and Dr McGowan. It was these features, taken in combination with the non-residential nature of the use, that the experts contrasted with: (1) the character and amenity reasonably expected in a low density residential area; and (2) the character and amenity of existing development to the south of the site (described at RFJ [13] and [14]). These were simple, obvious and reasonable comparisons to make in this case. The comparative exercises supported the views expressed by Mr Ovenden and Dr McGowan.
- [18]Ultimately, I preferred the evidence of the appellant’s experts to that of Mr Ovenden and Dr McGowan. In this regard, paragraph [68] of the RFJ states:
“As I have already observed, I prefer Mr Powell and Mr Buckley’s evidence to that of Council’s experts. This is because Mr Powell and Mr Buckley’s evidence was consistent with my own views of the visual aids and the description of existing character and amenity of the area of interest. Further, I was satisfied the evidence of Mr Ovenden and Dr McGowan should not be acted upon because they: (1) gave insufficient weight to existing development that adversely affects the character and amenity of this part of the Low density residential zone; (2) gave insufficient weight to the location of the site, forming part of the south-west quadrant of a landmark intersection, which has a mixed rather than residential character; (3) gave insufficient weight to the size of the site, which in the Low density residential zone may accommodate significant built form for the reasons set out in paragraphs [39] to [41];
(4) gave insufficient weight to the fact that adjoining residential development turns its back to the site and is orientated to the south thereby creating a bookend as discussed in paragraph [11]; (5) did not appear to take into account, or alternatively sought to minimise compliance demonstrated with Performance outcomes PO10, PO11 and PO16 of the zone code; and (6) gave insufficient weight to the absence of hard amenity impacts, which can be conditioned to achieve compliance with PO10 of the zone code. The failure to give sufficient weight to the matters above meant Mr Ovenden and Dr McGowan, in my view, overstated the likely impacts of the development. They also downplayed features of the development that were intended to mitigate impacts.”
- [19]The findings at paragraph [68] of the RFJ reveal that Council’s experts did not give sufficient weight to a number of contextual matters that pointed to a different conclusion to the one they had reached about character and amenity impacts (such as the nature of existing development, established compliance with the planning scheme, and the efficacy of conditions proposed by the appellant). That Council’s experts did so does not mean their opinions were not open or so lacking in merit such that they could be discarded out of hand. In simple terms, this is because the issues examined by the experts in this regard, and in due course the Court, could not be resolved one way or another in absolute terms. The issues involved matters of impression, fact and degree about which reasonable minds can, and do, differ.
- [20]As I have already said, Council enjoyed success with paragraph 2 of the disputed issues: RFJ [74] to [95]. The planning discretion was exercised on the footing that the proposed development would, if approved, do more than support a day-to-day need of a local community, thereby giving rise to material non-compliance with the planning scheme: RFJ [87]. Paragraph [95] of the RFJ states:
“In summary, the proposed development complies, in part, with overall outcome 3(h) and Performance outcome PO18. Non-compliance arises with those parts of each provision that seek to regulate the introduction of non-residential uses into the zone by reference to the nature of the need they serve. That the proposed development does not comply with overall outcome 3(h) and Performance outcome PO18 in this regard is serious and attracts significant weight (in favour of refusal) in the exercise of the planning discretion. It follows that part of the issue recorded at item (2) in paragraph 48 has been established.”
- [21]Contrary to Council’s case, I was satisfied there were a number of relevant matters favouring approval: RFJ [96] to [129]. They can be identified as follows:
- Council had, in granting approvals in the locality, diverted from the intent articulated in the planning scheme for the Low density residential zone, supporting a conclusion that the zone code was, in part, overtaken by events: RFJ [97](a);
- the proposed development was, in impact terms, fairly regarded as benign: RFJ [97](b);
- an approval would not lead to adverse character or amenity impacts: RFJ [97](c);
- an approval would be consistent with sound town planning practice and principle (co-location of a non-residential use with an existing Local centre): RFJ [99]; and
- a ‘relatively modest’ level of need had been identified for the proposal: RFJ [105].
- [22]As against the above matters supportive of approval, I was satisfied weight should be given to the large number of adverse submissions received during the public notification process. The weight ascribed to the submissions was however limited because they were affected by a number of shortcomings identified in the RFJ at [127].
- [23]Having regard to the assessment of the appellant’s development application, I was satisfied the case in favour of approval was strong: RFJ [130]. The matters in support of this conclusion, however, needed to be balanced against two reasons for refusal. This is made clear at paragraph [131] of the RFJ, which states, in part:
“there are two reasons warranting refusal. Taken in combination, they are by no means technical or trivial, representing a significant obstacle to approval.”
- [24]The primary and most significant reason for refusal was inconsistency with the planning scheme, in particular, with those parts of the Low density residential zone code seeking to limit the draw or function of a non-residential use to one that serves a particular need (day-to-day) of a particular community (immediate residential community). The non-compliance was regarded as serious because it involved a planning strategy. In this regard, paragraph [135] of the RFJ states:
“Given the terms of overall outcome 3(h) and PO18 of the zone code, and their apparent purpose, it is not difficult to conclude that the non-compliance is a significant matter in the exercise of the discretion. It is, on face value, decisive.” (emphasis added)
- [25]For the purposes of this costs application, paragraphs [131] and [135] are of significant import. They expose what I regard as the fulcrum, or real issue, in the appeal. The real issue starts from the premise that the development application should be refused. What then followed was a search for sound town planning reasons to do otherwise: RFJ [136]. Once this is appreciated, the herculean task the appellant has taken upon itself to establish that Council’s case was frivolous or vexatious, even in part, is exposed. How can it be that Council’s case was ‘doomed to fail’ or ‘lacking in reasonable prospects’ or ‘so lacking in prospects as to be ‘unarguable’’ when the starting point in the exercise of the discretion was refusal? As will be seen below, the appellant’s answer to this question is not persuasive.
- [26]I was satisfied an approval should be given for the reasons set out at RFJ [139] to [143]. Three considerations in this regard were particularly weighty. First, I found an approval would not, despite non-compliance with the planning scheme, sound in adverse planning consequences: RFJ [139]. Second, I was satisfied the purpose of the Low density residential zone code would still be achieved despite non-compliance with overall outcome 3(h) and PO18(b) of the same code: RFJ [141]. Third, I was satisfied the reasons for refusal lacked potency once the following was appreciated (RFJ [142]):
“…that Council has itself diverted from the same planning strategy of interest in this case. It has approved non-residential development to the north of the site. I have discussed this development and its diversion from the planning scheme above. The extent of diversion is not limited to a planning strategy. It includes non-compliance with provisions of the zone code dealing with the scale and appearance of built form and a requirement to conceal carparking areas. That Council has itself departed from the zone code, when taken in combination with the above matters, provides a sound town planning basis to depart from the planning strategy of interest in this appeal.
- [27]It should be observed that the appellant’s primary case did not advance the proposition that the planning scheme had been overtaken by events. This point was raised by the Court in final addresses having regard to the unchallenged evidence of Dr McGowan. It was his evidence about existing non-residential uses in the Low density residential zone that exposed the extent to which Council had itself already departed from the planning scheme. The departure was material. Given the obvious force of such a point, it was unsurprising Counsel for the appellant embraced it in final addresses. Importantly for this costs application, the point did not form part of the appellant’s case until very late in the appeal.
- [28]Against the background of the above, I am far from satisfied that an objective reading of the RFJ, in particular paragraphs [131] and [135], supports a submission that: (1) Council’s case, even in part, was doomed to fail or unarguable; or (2) Council’s case, even in part, was so lacking in merit that it was required by the implied undertaking identified in s 10(2) of the PECA to capitulate and accede to an approval prior to trial.
The costs power
- [29]The starting position is that each party bears its own costs of the appeal: s 59 PECA. This is subject to, inter alia, s 60 of the PECA, which confers a power to make an order where a party has incurred costs in one, or more, of nine identified circumstances. The circumstances are identified in ss 60(1)(a) to (i). If one or more of the circumstances are established, it does not necessarily follow that an order will be made. There remains an unfettered discretion to make a costs order: Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPELR 662, [24] and [109]. The order can be about a proceeding, or part of a proceeding, including a defence: Sincere (Supra), [26].
- [30]The appellant contends two of the circumstances identified in s 60(1) are present in this case, namely those stated in subsections (b) and (i). The provisions are in the following terms:
“(1) The P&E Court may make an order for costs for a P&E Court proceeding as it considers appropriate if a party has incurred costs in 1 or more of the following circumstances—
…
(b) the P&E Court considers the proceeding to have been frivolous or vexatious;
Example—
The P&E Court considers a proceeding was started or conducted without reasonable prospects of success.
…
(i) an applicant, submitter, assessment manager, referral agency or local government does not properly discharge its responsibilities in the proceeding.”
- [31]The phrase ‘frivolous or vexatious’ is not defined in the PECA and is to be given its ordinary meaning; the individual words are used in everyday language. For an identical legislative provision, the words have been held to mean (Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd R 271, [35], [36] and [59]):
- ‘frivolous’ means, inter alia, ‘of little or no value or importance, paltry’, ‘having no reasonable grounds’, ‘lacking seriousness or sense’, ‘not worthy of serious notice’; and
- ‘vexatious’ means, inter alia, ‘causing vexation, vexing, annoying’ and ‘productive of serious and unjustified trouble and harassment’.
- [32]To establish a proceeding, or part thereof, is frivolous or vexatious, something more than a lack of success needs to be shown. As the ‘Example’ to the provision states, it can include pursuing, or defending, a proceeding without reasonable prospects of success. Inevitably, whether a proceeding, or part thereof, is characterised as frivolous or vexatious will turn on the circumstances of the case, which includes public policy considerations and the interests of justice: Mudie (supra), [36] and [37].
- [33]As to a party’s ‘responsibilities’ in a proceeding for the purpose of s 60(1)(i) of the PECA, this has been held to refer to a responsibility arising from an obligation imposed under the PECA, and the Planning Act 2016. Relevantly for this case, such an obligation includes a requirement to comply with the implied undertaking identified in s 10(2) of the PECA: Sincere (Supra) [100] to [102]. For a local government to demonstrate compliance with s 10(2) of the PECA, I made this observation in Sincere (Supra) (at paragraph [103]):
“Compliance with s 10(2) of the PECA will require a local authority, such as the Council in this appeal, to properly assess the merits of its case and ‘properly acknowledge and address, shortcomings in its case’, where appropriate. The assessment is not fixed in time. It is an assessment that ought be carried out at a number of stages of the litigation, and be responsive to new material that comes to light. The requirement under s 10(2) of the PECA does not, however, require a party to capitulate at the first sign its case may not succeed. It is how a party responds to, and runs its case responsive to this assessment, which will be of import for the purposes of s 10(2) of the PECA.”
Objection to evidence
- [34]The appellant’s written submissions with respect to costs rely upon the contents of a Council officer’s report recommending approval of the development application to demonstrate: (1) Council, having the benefit of the report, should have been aware from the beginning that a decision to refuse, which relied on adverse character and amenity impacts, was unsound; and (2) Council, having the benefit of the report, should have been aware of the risk that the expert evidence it sought to rely upon would not be accepted for the reasons given in the RFJ at [68].
- [35]The officer’s report was objected to by Mr Wylie on the footing it was inadmissible hearsay and irrelevant.
- [36]It is unnecessary to make a formal ruling on the objection.
- [37]To rule on the document, I was required to read it in full, with particular attention given to the parts relied upon by the appellant. In doing so, I formed the view that, even if the document was admissible, and given the effect for which the appellant contends, the fate of this application for costs remains unchanged; the application will be dismissed. This is not altered by the contents of the report because it deals with an earlier iteration of the development application; contains views expressed prior to the preparation of the photomontages for this appeal; and contains views expressed without the benefit of the joint expert reports that were in evidence before the Court.
Was the conduct of Council’s case with respect to character and visual amenity frivolous or vexatious?
- [38]The appellant, in relying upon this aspect of s 60(1) of the PECA, must demonstrate that Council’s character and visual amenity issue was ‘doomed to fail’ or ‘so lacking in merit or substance as to be not fairly arguable’. This does not follow because, like here, a party robustly asserts this to be the case. Rather, it must be evident from an examination of the circumstances of the case.
- [39]The circumstances here do not support a finding that the character and amenity impact alleged, and maintained, by Council, was doomed to fail or was so lacking in merit to be unarguable. This, in my view, follows once the following matters are appreciated.
- [40]First, the nature of the development, the zone in which it was proposed and the number and force of public opposition to approval were always such as to call for a careful examination of amenity and character impacts.
- [41]The proposed development is a non-residential use proposed in a Low density residential zone. In this zone two things are reasonably expected: (1) non-residential uses may be provided in the zone in limited circumstances provided specific tests going to scale, form and function are met; and (2) a high level of amenity is reasonably expected. Over 270 properly made submissions were received and most opposed the development application on grounds that included the location of the use and its potential for adverse amenity impacts on residential uses. With these features in mind, Council, in my view, could not be said to have acted unreasonably in advancing an adverse character and amenity issue.
- [42]Second, if there was any doubt about the need to carefully examine potential impacts on character and amenity, this was put beyond doubt by overall outcome 3(h) and PO18 of the Low density residential zone code. The provisions inform the limited circumstances in which non-residential development is anticipated in the zone. They each provide a cumulative test, directed towards the scale, form and function of such a proposal. Here, Council was successful in demonstrating the proposal would function, or draw patronage, from an area significantly greater than that anticipated by the planning scheme. Non-compliance was established. This was relevant to an assessment of character and amenity impacts because it may be symptomatic of a non-residential use that is not anticipated in the zone. The established non-compliance was therefore supportive of Council’s position in relation to reasonable expectations about character and amenity, and associated impacts.
- [43]Third, the assessment of character and amenity impacts in this case turned on matters of impression, fact and degree. An important piece of evidence in this regard were the photomontages: RFJ [53]. A review of the photomontages, and all evidence going to the issue of character and amenity impacts, provides no absolute answer. The very nature of the issue, which was predominantly visual in nature, was one about which reasonable minds can, and do, differ, having regard to the same visual aids.
- [44]Fourth, Council led evidence from two experienced expert witnesses about character and amenity impacts. The views expressed took into account: (1) the state of existing development and extant approvals; (2) planned development; (3) features of the development that reinforce its non-residential character; and (4) whether potential impacts could be appropriately mitigated by conditions. I was not persuaded Council’s experts gave sufficient weight in their assessment to the matters captured by item (1). This adversely impacted the assessment required for item (4). Collectively, these matters undermined my confidence in the opinions expressed by Mr Ovenden and Dr McGowan. As the RFJ make clear, I preferred the evidence of Mr Buckley and Mr Powell in relation to character and amenity impacts.
- [45]It does not follow, however, that Mr Ovenden and Dr McGowan’s evidence was such that it should have been clear to Council prior to trial that the character and amenity issue raised as a reason for refusal was doomed to fail, unarguable or lacking in merit. To the contrary, the expert evidence was focused. It was well explained. It was supported by reference to the photomontages. It also found support in the non-compliance ultimately established with PO18(b) and overall outcome 3(h) going to the function, or draw, of the proposal. Once this is appreciated, it is not difficult to conclude that it was reasonable for Council to rely upon the evidence of its experts and, in turn, maintain resistance to the appeal having regard to potential character and amenity impacts.
- [46]I pause to observe that a respondent’s case will not be saved from criticism under s 60(1) of the PECA simply because it was supported by expert evidence. Section 10(2) of the PECA requires a party calling expert evidence to do more than blindly rely upon it. The evidence must be examined and tested. In practical terms, this means an independent assessment and review should be brought to bear, with attention given to the strength of the expert evidence in light of all the circumstances. Here, reviewing the evidence of Council’s experts, even with the benefit of hindsight, does not lead to a conclusion that Council was left in a position that its case was unarguable or doomed to fail. To suggest otherwise materially overstates the strength of the appellant’s case. The case was strong, but not so strong as to require Council to capitulate in the face of the evidence of its experts.
- [47]The appellant submitted there were five reasons that demonstrate why Council’s case in relation to visual amenity and character issues was frivolous or vexatious and did not enjoy reasonable prospects of success: appellant’s written submissions (AWS), [55] to [61]. The five reasons were as follows, namely: (1) this aspect of Council’s case was maintained contrary to an officer’s recommendation; (2) the development application was changed to respond directly to visual amenity and character issues, undermining the strength of Council’s case with respect to those issues; (3) Council did not recast its reasons for refusal after a second minor change order, demonstrating an unwillingness to bring a fair and reasonable assessment to bear; (4) Council could not identify any material planning harm that would result as a consequence of non-compliance with the planning scheme; and (5) Council’s case was materially undermined by approvals it had granted in the local area.
- [48]I am not persuaded items (1) to (5) individually, or collectively, make good a submission that Council’s character and amenity issue was frivolous, vexatious or lacking reasonable prospects of success. I make the following observations in this regard about each of the five items.
- [49]It is correct to say that Council’s decision to refuse the development application was contrary to an officer’s recommendation. Item (1) is, therefore, correct as a matter of fact. That Council’s refusal, and ongoing resistance of the appeal, was contrary to the officer’s recommendation does not, however, take the matter very far. Council was not bound to accept the recommendation. It was open for the elected officials to take a different view. This is the course Council took and gave reasons for doing so. Those reasons were modified during the life of the appeal and, ultimately, were supported by expert evidence. It was not unreasonable for Council to resist the appeal on character and amenity grounds in these circumstances.
- [50]It can be accepted, as a matter of fact, that the development application was changed during the appeal process to improve its prospects of success. With the benefit of hindsight, the changes made were material in that they undermined Council’s refusal case in relation to character and amenity issues. It is, however, overstating things to suggest the changes were such as to render the Council’s character and amenity issue unarguable or doomed to fail. It is for the same reasoning that I do not accept item (3).
- [51]I do not accept item (4). Council did identify a planning consequence that would result from an approval. One such impact was the potential for adverse amenity and character impacts. This point was arguable. The state of the evidence did not, in my view, suggest Council should have capitulated on this issue prior to trial. Nor did it suggest the point was unarguable or doomed to fail.
- [52]The extant approvals referred to in item (5) were granted by Council for non-residential development. An issue in the appeal was the weight to be given to these approvals for two different purposes. First, there was a question as to the weight to be given to the approvals when examining impacts on existing character and amenity. Second, a question arose as to the weight to be attributed to the approvals in the context of an ‘overtaken by events’ point. A review of Council’s case, and evidence, reveals the approvals were considered and taken into account for both issues. In particular, Mr Ovenden expressed the view that the planning scheme had not been overtaken by events despite the approvals granted. While I did not accept sufficient weight was given to the approvals by Council or its experts, it does not follow that the character and amenity issue relied upon was doomed to fail or was unarguable.
- [53]It has not been established that s 60(1)(b) of the PECA is engaged.
Did Council fail to properly discharge its responsibilities in the proceeding?
- [54]It was submitted Council failed to properly discharge its responsibilities in the proceeding because:
- it should have been on notice from the beginning about the lack of merits in its case given character and amenity grounds were advanced contrary to the recommendation of Council’s senior planning officer: AWS, [24];
- Council was ‘willingly blind’ to, or failed to properly acknowledge, shortcomings in its own case about the amenity and character issues: AWS, [26];
- Council’s position in relation to the amenity and character issues wrongly assumed the proposed use was ‘industrial’, contrary to its own planning scheme, which undermined the merit of its case: AWS, [27];
- Council did not properly assess whether the amenity and character matters relied upon warranted refusal or were appropriately addressed by conditions: AWS, [30]-[34];
- Council did not properly assess whether the expert evidence it relied upon was ‘properly supportable’ given the evidence did not ‘properly’ take into account the approvals discussed at paragraphs [11] and [12] of the RFJ; AWS, [40]-[45]; and
- Council did not actively calibrate or recalibrate its position despite ‘meaningful’ minor changes made to the development application by the appellant to address reasons for refusal (including changes that addressed architectural, landscaping and visual amenity issues): AWS [46]-[51].
- [55]On reading the appellant’s written submissions, one might be forgiven for thinking that the outcome in this appeal was obvious and inevitable, requiring Council to capitulate in favour of an approval. Capitulation seems to have been required given a combination of: (1) extant non-residential approvals given by Council in the local area; and (2) a Council officer’s recommendation that the appellant’s development application should be approved. Submissions of this kind have the tenor of a complaint that Council’s case was ‘doomed to fail’ from the beginning, which did not improve as changes were made to the development to respond to issues in dispute. Such a complaint sounds seductively simple, but for reasons given above, I reject it. It is not made good after a careful examination of the circumstances of this case. The circumstances did not require Council to capitulate on character and amenity considerations in this appeal.
- [56]This is sufficient, in my view, to dispose of this part of the appellant’s costs application which is founded on an alleged breach of the implied undertaking in s 10(2) of the PECA.
- [57]If a different view is taken about this, for reasons given above, contrary to the appellant’s written submissions, I am comfortably satisfied Council was not acting unreasonably, or inconsistent with its obligations in the proceeding. The case that was run at trial was focused; it was narrow; it was supported by expert evidence. That the Council’s expert evidence was not accepted, including for a reason consistent with subparagraph (c) above, did not require capitulation. Nor did it require Council to accept that an approval was inevitable.
- [58]As to the reasons set out at paragraphs (a) to (f) above, I am satisfied they do not individually, or collectively demonstrate s 60(1)(i) of the PECA is engaged in any event. In this regard: (1) subparagraph (a) is less than compelling for the reasons given at [37]; (2) subparagraph (b) is not supported by evidence that establishes Council was ‘willingly blind’ to its prospects of success – the submission is tantamount to speculation and has the distinct aroma of advocate’s flourish; (3) subparagraph (c) is correct as a matter of fact but does not establish that Council’s character and amenity case was doomed to fail or so weak as to require capitulation; (4) subparagraphs (d), (e) and (f) are mere assertions – they sit uncomfortably with the fact that Council led evidence in support of its case, which was narrow, focused and had been recalibrated during the appeal process. The recalibration of the case exposes that some of the changes made to the development application by the appellant, taken in conjunction with proposed conditions of approval, were considered sufficient to mitigate some, but not all, amenity impacts advanced in Council’s case.
- [59]It has not been established that s 60(1)(i) of the PECA is engaged.
Disposition of the application in pending proceeding
- [60]The appellant has not established the power to make an order as to costs under s 60(1) of the PECA is enlivened.
- [61]The application in pending proceeding filed 14 February 2025 is dismissed.