Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 79

SUPREME COURT OF QUEENSLAND CITATION: Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 79 PARTIES: DEVELOPMENT WATCH INC (appellant) v SUNSHINE COAST REGIONAL COUNCIL (first respondent) SH COOLUM PTY LTD ACN 146 376 972 (second respondent) FILE NO/S: Appeal No 8019 of 2020 P&E Appeal No D166 of 2018 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Planning and Environment Court at Maroochydore – [2020] QPEC 25 (Kefford DCJ) DELIVERED ON: 17 May 2022 DELIVERED AT: Brisbane HEARING DATE: Submissions on behalf of the appellant dated 18 February 2022; submissions on behalf of the first respondent dated 4 March 2022; submissions on behalf of the second respondent dated 25 March 2022 JUDGES: Morrison and McMurdo JJA and Burns J ORDERS: 1. Remit the decision of the Planning and Environment Court made on 15 June 2020 in Appeal No. D166 of 2018 to the Planning and Environment Court to be determined according to law. 2. The respondents shall pay two thirds of the appellant’s costs of the application for leave to appeal and appeal. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellant was granted leave to appeal against a decision of the Planning and Environment Court – where the appeal was allowed and the decision of the Planning and Environment Court set aside – where the parties were directed to make further submissions as to the terms on which the case should be remitted to the Planning and Environment Court to be determined according to law – whether the case should be remitted for rehearing before a different judge APPEAL AND NEW TRIAL – PROCEDURE – -- 1 of 5 -- 2 QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was granted leave to appeal against a decision of the Planning and Environment Court – where the appeal was allowed and the decision of the Planning and Environment Court set aside – where the parties were directed to make further submissions as to the costs of the application for leave to appeal and appeal – whether the costs should be apportioned between the parties in accordance with the issues on which the parties succeeded Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2021] QPELR 200; [2020] QPEC 25, cited Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, cited Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2020] QPELR 148; [2019] QPEC 43, cited Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302; [2012] QCA 370, cited COUNSEL: J M Horton QC, with A N Skoien, for the applicant C L Hughes QC, with M J Batty, for the first respondent D R Gore QC, with J D Houston, for the second respondent SOLICITORS: Ray Barber Solicitor for the applicant Sunshine Coast Regional Council Legal Services for the first respondent Corrs Chambers Westgarth for the second respondent [1] MORRISON JA: I agree with the reasons prepared by Burns J and the orders his Honour proposes. [2] McMURDO JA: I joined in the orders which were made by this Court’s judgment handed down earlier this year. My reasons differed from those of Burns J (with whom Morrison JA agreed), but of course the case will have to be reconsidered according to his Honour’s judgment. [3] I agree with his Honour’s reasons as to the terms of the remitter and the costs in this Court, and the orders which he proposes. [4] BURNS J: By this proceeding, leave was sought to appeal against a decision of the Planning and Environment Court dismissing a submitter appeal and approving an application to develop a parcel of land on the Sunshine Coast.1 [5] Judgment was handed down on 9 February 2022.2 Leave to appeal was granted, the appeal allowed, and the decision of the Planning and Environment Court set aside. The parties were also directed to file and serve written submissions regarding: (1) the terms on which each contends the case should be remitted to the Planning and Environment Court to be determined according to law; and (2) the appropriate order as to costs. Those submissions have now been received. 1 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25. 2 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6. -- 2 of 5 -- 3 Remitter [6] In my reasons on the application for leave to appeal and appeal, I made these preliminary observations: “… On one view, the issues determined by this appeal are within short compass when compared to the great bulk of the overall case determined in the court below, and none of which has been questioned in this Court. However, robust findings were made by the primary judge on the issues that have been successfully challenged and it may therefore be asking too much of her Honour to re-visit them.”3 [7] In the submissions that were subsequently made, Development Watch maintained that the whole of the case should be remitted to the Planning and Environment Court for rehearing before a different judge. This, it was said, was necessary because of the strong findings made by the primary judge on critical matters that were adverse to its interests. Particular emphasis was placed on her Honour’s findings that the expectations of the submitters were “out of step with the effect of the Planning Scheme when read as a whole”,4 that the concerns of the local residents could be discounted because they were “not evidence of reasonable expectations”5 and that “a number of the submissions were misguided”.6 Furthermore, Development Watch embraced the second of the observations in the passage extracted above in submitting that it would be asking too much of the primary judge to now assess the development application having regard to Version 18 of the Planning Scheme when her Honour had already declined to do so. Remittal of the whole case for rehearing before a different judge would also be consistent, it was contended, with the approach taken by this Court in Lockyer Valley Regional Council v Westlink Pty Ltd.7 [8] On the other hand, the respondents, Sunshine Coast Regional Council and SH Coolum Pty Ltd, submitted that the usual practice should be followed of remitting the appeal to the Planning and Environment Court for determination by the primary judge in accordance with the reasons of this Court. The point was made that this Court has always been slow to remit a case to a different judge because of the potential for unnecessary waste of the resources of the Planning and Environment Court and the burden that such an outcome would inevitably place on the parties.8 As to this, it was submitted that the case below was substantial, occupying over 15 sitting days and involving the tender of over 100 exhibits. In contest at the hearing was a considerable range of other issues in addition to those about which the appeal was concerned, and no complaint was made about any of those other issues. There is, I have to say, much force in these submissions. [9] In any event, I am not persuaded that the case should be remitted for rehearing before a different judge. Rather, it should be remitted for hearing by the Planning and Environment Court according to law. 3 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, [59]. 4 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [301]. 5 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [302]. 6 Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25, [430]. 7 [2012] QCA 370. 8 The second respondent referred to a number of decisions of this Court to support that submission, the most recent of which was Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2020] QPELR 148. -- 3 of 5 -- 4 [10] In the first place, Lockyer Valley Regional Council v Westlink Pty Ltd was a different case. There, the procedural history was such as to require remittal to a different judge.9 Second, and as previously recorded,10 the challenge to the decision in the court below was a narrow one, it being focused on the primary judge’s finding that the development complied with Version 8 of the Height of buildings and structures overlay code and, in particular, that the height of the proposed buildings and structures was consistent with the reasonable expectations of the local community. That challenge was successful because, it was held, her Honour erred in the respects identified in the judgment.11 Each went to the question whether the proposed development complied with the Height of buildings and structures overlay code and the reasons explain why her Honour fell into error in these respects.12 Assisted by that explanation, there is no reason to think that her Honour will do other than determine the question afresh according to law. Indeed, once it is appreciated that a finding needed to be made as to the local community’s expectations regarding height, that there was a credible and substantial source of evidence as to those expectations in the form of the submissions which needed to be considered as part of the assessment and that, freed of any case management considerations, the change to the Planning Scheme brought about by Version 18 should be considered, I expect that much of the foundation for the findings about which Development Watch complains may be seen to fall away. Costs [11] Development Watch submitted that the appropriate order was that the respondents pay its costs of the application for leave to appeal and the appeal. This, it argued, should follow its success on all of the grounds of appeal that it actively pursued (grounds 1 and 2) and that, whilst the remaining ground (ground 3) did not succeed, it was not the subject of oral submissions at the hearing. Further, it was argued, even if the lack of success on that ground is taken into account, the result should be the same because the “weighty issues (and the ones in which the parties invested effort) were disposed of favourably” to Development Watch. [12] For the Council, it was submitted that the appropriate order was that the respondents pay one half of Development Watch’s costs on the standard basis because it was “only successful in part [on] the issues raised in the appeal”. SH Coolum submitted that the Court should order the respondents to pay two thirds of the appellant’s costs on the basis that the appellant failed on the need ground as well as the construction argument. [13] Development Watch did not wholly succeed on grounds 1 and 2; as SH Coolum submitted, Development Watch lost the construction argument and that was part of ground 2. It was also a “weighty issue”. As to ground 3, Development Watch should not be relieved of the adverse costs consequence that follow the loss of that ground merely because it did not press that challenge with oral argument; the ground was never abandoned. [14] In all the circumstances, this is an appropriate case for a proportionate split of the costs burden in accordance with the issues and, in that regard, the proportion submitted on behalf of SH Coolum is appropriate. 9 As to which, see Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370, [4] and [34]. 10 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, [28]. 11 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, [45], [47] and [51]. 12 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6, [49]-[51]. -- 4 of 5 -- 5 Orders [15] For these reasons, I would order as follows: 1. Remit the decision of the Planning and Environment Court made on 15 June 2020 in Appeal No. D166 of 2018 to the Planning and Environment Court to be determined according to law. 2. The respondents shall pay two thirds of the appellant’s costs of the application for leave to appeal and appeal. -- 5 of 5 --