Donovon v Brisbane City Council & Ors (No 2) [2020] QPEC 41 [2021] QPELR 677

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Donovon v Brisbane City Council & Ors (No.2) [2020] QPEC 41 PARTIES: RAYLENE GAYLE DONOVON (respondent/applicant) v BRISBANE CITY COUNCIL (first respondent) and NICHOLAS ANDREW BUCKLE AND MARGARET HELEN JOSE-BUCKLE (applicants/second respondents) FILE NO/S: BD1146/2016 DIVISION: Planning and Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 7 August 2020 DELIVERED AT: Brisbane HEARING DATE: Application dealt with on the papers – submissions concluding 9 July 2020 JUDGE: R S Jones DCJ ORDER: 1. The respondent, Raylene Gayle Donovon is to pay the applicants’ costs of the hearing before this Court on 2, 3, 4 and 5 March 2020. 2. Such costs to be agreed or otherwise assessed on the standard basis. CATCHWORDS: APPLICATION FOR COSTS – where development application brought by the respondent to the cost application was refused – where the second respondents to the development application now seek their costs of the hearing – where relevant provisions concerning costs are under the -- 1 of 13 -- 2 LEGISLATION: CASES: COUNSEL: SOLICITORS: repealed Sustainable Planning Act 2009 (Qld) – where different statutory regime in respect of costs under the current Planning and Environment Court Act 2016 (Qld) – relevance of the introduction of a different costs regime under the current legislation. Sustainable Planning Act 2009 (Qld) Integrated Planning Act 1999 (Qld) Planning and Environment Court Act 2016 (Qld) Cox v Brisbane City Council (No. 2) [2014] QPELR 92 Donovan v Brisbane City Council [2020] QPEC 9 Fountain Selected Meats (sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 Ko v Brisbane City Council & Anor (No.2) [2018] QPEC 49 Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 392 Martinovic v Chief Executive, Queensland Transport (2005) 1 Qd R 502 Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271 Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 Swan v Santos GLNG Pty Ltd & Ors [2019] QCA 6 YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No.2) [2014] QPEC 43 Mr A Skoien for the respondent/applicant Mr M Batty for the applicants/second respondents Pan and Partners for the respondent/applicant Connor O’Meara for the applicants/second respondents [1] This proceeding is concerned with an application for costs following a four day hearing in this Court in March 2020. For the reasons set out below, the orders of the Court are: 1. The respondent, Raylene Gayle Donovon is to pay the applicants’ costs of the hearing before this Court on 2, 3, 4 and 5 March 2020. 2. Such costs to be agreed or otherwise assessed on the standard basis. Background -- 2 of 13 -- 2 [2] Nicholas Buckle and his wife Margaret Helen Jose-Buckle (the applicants) and Raylene Donovon (the respondent) are neighbours living on adjoining river frontage Lots at Dewar Terrace, Corinda. Both Lots slope steeply from Dewar Terrace to the east down to the Brisbane River to the west. Having regard to topography and, in particular ecology, it was a condition of the subdivision creating the two Lots that specific building location envelopes (BLEs) were identified and that: “No part of any building, associate buildings and other structures (including swimming pools, tennis courts, retaining walls, excavation, filling, car parking) … or an access way for motor vehicles… is to be located only part of the site outside of the approved Building Location Envelope …” [3] Both Lots were also subject to covenants created to “ensure the conservation of the plants and native animals on the covenant area over covenants on Lots 6 and 7...” The net effect of the defined BLEs and the covenants was that the houses now constructed on both Lots are surrounded on all sides, but most relevantly to the east, by areas subject to the covenant, save for that land required to provide access to both Lots. In that regard, the applicants and the respondent shared joint access arrangements under a number of associated easements. [4] On 24 March 2016, the respondent filed her originating application seeking the following relief: “1. Approval pursuant to s 369(1)(d) of the Sustainable Planning Act 2009 for permissible change to the Development Approval that was given by the Court on 20 October 2004… and in particular: (a) an extension of the BLE; (b) a corresponding reduction in the area of the subject of the existing Covenant for the preservation of Native Animals and Plants.” [5] The substantive goal of that application was the construction of a two-storey building having a first and second ground floor footprint of approximately 7.8m x 8.5m. Development would also have involved considerable earthworks, including re- arranging the existing access arrangements. The applicants opposed the proposed development. [6] One of the central features of the substantive hearing was the difficulty in identifying exactly what use would be made of the proposed structure. While it was -- 3 of 13 -- 3 uncontroversial that the ground floor would be used primarily for the garaging of motor vehicles, there was a significant level of uncertainty about what was intended to occur on the upper floor. This aspect of the case will be discussed in more detail below. In any event, on 20 March 2020, the respondent’s application to this Court was dismissed for the reasons set out in Donovan v Brisbane City Council [2020] QPEC 9. I would note at this stage that the Brisbane City Council has no interest in the costs dispute. [7] At one stage it was said that the proposed development was intended to provide an opportunity for the respondent to “make better use and utility of her land and improve the enjoyment of her asset.”1 Under the heading “Application for Pre-request Change to Development Application”, it was stated that the proposed development was intended to provide “for a range of potential options and design outcomes.”2 [8] In drawings prepared as early as 25 June 2015, the upper level was described as “proposed storage”. However, in more recent drawings dated 28 March 2017, the upper level was described as a “loft.” The latter description was consistent with evidence provided by the respondent in her affidavit of 22 August 2019, where she identified that the upper level would be used as a store-room but also as a utility room for her husband to carry out his various projects and/or hobbies. The respondent’s husband was described as an “artist/hobbyist.”3 [9] In an attempt to identify the real intended use of the upper level, the matter was taken up with Mr Skein, counsel for the respondent, who stated that the intended use was for storage only.4 However, that description was not only inconsistent with the respondent’s affidavit material but also with her evidence during the course of the proceedings.5 It also became clear during the cross-examination of the respondent by Mr Batty, counsel for the applicants, that she would have been reluctant to accept a condition that limited the use of the upper level to storage purposes only and that the final use of the upper level had yet to be decided. 1 Donovan v Brisbane City Council [2020] QPEC 9, [7]. 2 At [8]. 3 At [11] – [12]. 4 At [10]. 5 T3-9, ll 37 – 46; T3-10, ll 11-13. -- 4 of 13 -- 4 [10] The dispute between the applicants and the respondent and, at the time, the Council, was the subject of intense negotiation between the parties and came very close to a negotiated settlement. Those negotiations commenced after the first day of the initial hearing of the substantive appeal on 28 March 2017. Unfortunately, for reasons it is unnecessary to go into in any detail, those negotiations fell through and the proceeding re-commenced before this Court on 2 March 2020. The relevant statutory cost regime [11] It is uncontroversial that the relevant cost regime is that provided for pursuant to s 457 of the Sustainable Planning Act 2009 (Qld) (SPA), notwithstanding that Act being repealed by the Planning Act 2016 (Qld) (PA) and, most relevantly in respect of this application, the introduction of the Planning and Environment Court Act 2016 (PECA). [12] Section 457 of the SPA relevantly provided: “(1) Cost 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— (a) the relative success of the parties in the proceeding; …. (d) whether a party commenced or participated in the proceeding without reasonable prospects of success; … (i) whether a party had acted unreasonably in the conduct of the proceeding…” [13] In Cox v Brisbane City Council (No. 2), Judge Rackemann DCJ observed that the discretion afforded by s 457(1) was:6 “…an open one. It is not to be approached either on the basis that there is a presumption that costs follow the event (as is the general rule in other courts dealing with ordinary civil litigation) or on the basis that there is a qualified protection against an adverse costs order…” 6 [2013] QPEC 78 at [2]. Decided with approval in Swan v Santos GLNG Pty Ltd [2019] QCA 6. -- 5 of 13 -- 5 [14] In YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors (No.2),7 the court observed: “The philosophy underlying that cost regime has been clearly displaced by the amendments to s 457. The natural and ordinary words used in s 457 as it now stands makes it clear that there is no presumption that costs ought follow the event. However, that said, the discretion given to the court is now a very wide one and while the success of a party is not a determinative factor it is clearly a relevant consideration. And, in litigation of the type involved here, I consider it to be a significant consideration. It is not necessary to refer to the Explanatory Notes which were referred to and handed up during the course of argument to identify the intention of the Legislature regarding the amendments to s 457. The natural and ordinary meaning of the words used therein speak for themselves. In any event, in my opinion, the Explanatory Notes bear little resemblance to what was finally enacted in s 457.” [15] It is important to note that in respect of the reference to “litigation of the type involved here” that is a reference to that proceeding being concerned with litigation involving two large commercial competitors. That is clearly not the case here. That said, the success or otherwise of a party in proceedings under the SPA is clearly a relevant consideration and a significant one. Second, while the discretion to award costs pursuant to s 457 must at all times be exercised judicially having regard to all of the relevant circumstances, it was nonetheless a relatively broad discretion.8 [16] Notwithstanding accepting that the relevant statutory regime was that provided for under s 457 of the SPA, it was submitted on behalf of the respondent: “… it is relevant for the Court to consider the changes in the costs regime that have been made subsequently (in effect, reverting to the previous costs regime in place until 2012)”.9 [17] It was further submitted that:10 “While the transitional provisions of the SPA provided that the costs provisions applicable at the time of the amendment to the SPA (i.e. 19 May 2017) would continue to apply to this proceeding, it is relevant, and significant, in considering the exercise of the general discretion, that, had the Applicant made a second permissible change request (for instance, incorporating the proposed change notified in August 2019) 7 [2014] QPEC 43 at [17]. 8 See Ko v Brisbane City Council & Anor (No.2) [2018] QPEC 49 at [33]; Cox & Ors v Brisbane City Council (No.2) [2013] QPEC 78 at [3]. 9 Respondent’s written submissions at para 2.19. 10 At para 2.22. -- 6 of 13 -- 6 by lodging an originating application at any time from 19 May 2017 (i.e. had the notification of the aspects of Proposed Change in August 2019 been performed by the commencement of the new proceedings), the court would not have a general discretion with regard to costs.” (original emphasis) [18] It was then asserted that proposition was particularly significant in circumstances where the hearing of the matter occurred after 19 May 2017; and the respondent had attempted to modify her change request after 19 May 2017 to address concerns raised by the applicants.11 It was then asserted:12 “Relevantly, the provisions of the SPA with regard to costs from 19 May 2017 onwards (consistent with the current provisions of the Planning and Environment Court Act 2016 from 3 July 2017 onwards), provided that the discretion with regard to cost would be enlivened, relevantly, only where one or more of the following circumstances existed.” [19] Thereafter reference is made to the types of matters considered relevant under s 60(1)(b), (e) and (f) of the PECA. [20] At this stage it is convenient to identify a number of matters. First, the discretion to award costs afforded under the SPA is materially broader than that under s 60 of the PECA. Second, the philosophy concerning costs embodied in the PECA is largely (if not entirely) reflective of that of the predecessor of the SPA, s 4.1.23 of the Integrated Planning Act 1997 (Qld) (IPA). Under both the PA and IPA, the starting point was that parties involved in litigation of the type involved here were expected to bear their own costs.13 Finally, in this context I would note that while “frivolous and vexatious” litigation is referred to in both PECA and IPA, consistent with a number of observations made by various courts,14 under the PECA, an example of litigation that might be properly be described as being frivolous or vexatious was that a proceeding, “was started or conducted without reasonable prospects of success.” Discussion and consideration 11 At para 2.23. 12 At para 2.24. 13 Section 59 of the PECA. Section 4.1.23(1) of the IPA. 14 e.g. Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors 81 ALR 397 and Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 392 [8] citing with approval an earlier decision of the Court of Appeal in Martinovic v Chief Executive, Queensland Transport (2005) 1 Qd R 502 at [22]. -- 7 of 13 -- 7 [21] As to what might have occurred had the respondent acted differently as referred to in the written submissions filed on her behalf,15 I consider those propositions to be sufficiently hypothetical as to not warrant any further discussion. That said, given the other submissions made on behalf of the respondent concerning the relevance of the PECA,16 they will be addressed below. [22] Insofar as the relative success of the parties is concerned, there can be no doubt that the applicants were wholly successful in resisting the outcome contended for by the respondent. This is not one of those situations where each party has had a degree of success or one party has only just managed to resist the relief being sought against it. In this case, the success of the applicants could only be described as being resounding and unequivocal. [23] Unsurprisingly then, I am also of the view that the proceedings brought by the applicant were commenced without any reasonable prospects of success. [24] In the substantive reasons, the issues in dispute were identified17 and, by reference to those issues and the reasons for judgment (ROJ) there can be little, if any, room for doubt that the consent of the second respondents was required. Further, for the reasons given in the substantive hearing it could not be sensibly or reasonably said that the failure to consent on the part of the applicants was unreasonably withheld. That is particularly so having regard to the fluidity of what might or might not occur on the upper level of the proposed development. Finally, again there is little, if any, room for doubt that the types of conditions advanced on behalf of the applicant could not have been imposed and that there was no realistic prospect of any non-compliance with the obligations required under SPA being capable of excusal pursuant to s 440 of that Act. In respect of the types of conditions contended for on behalf of the respondent said to warrant approval, insofar as they were concerned with the use of the upper floor, I would again point out that they were also inconsistent with the applicants own evidence about what she might be prepared to agree to by way of conditions. 15 At para 2.22 – 2.26. 16 At paras 2.18-2.21. 17 At [27]. -- 8 of 13 -- 8 [25] It was contended on behalf of the respondent that:18 “The Second Respondent did not bring any application to strike out, or summarily dismiss, the Originating Application. Nor did they bring any application seeking summary judgment in the proceeding. The absence of any such application is a good indication that the Second Respondents themselves either did not consider the applicant had no reasonable prospects of success or saw some benefit out of the continuation of the proceedings. That is entirely consistent with the subsequent negotiations between the parties during the original hearing of the proceeding, which resulted in an agreement in principle…” (Emphasis added). [26] That submission must be rejected. That the proceeding was not sought to be dealt with summarily is not surprising given the proceeding involved a number of disputed factual matters concerning differences in the opinions of experts in different fields of expertise. Notwithstanding the obvious flaws in the respondent’s case it was not one suitable to be summarily dismissed. I also reject the proposition that the behaviour of the applicants, in joining in negotiations to try and resolve the matter was consistent with their accepting, or seeming to accept, that the respondent had reasonable prospects of success. To avoid expensive litigation by reaching a negotiated settlement is of itself not an uncommon event. Also, as Mr Skoein identified, a negotiated settlement might have seen a better outcome insofar as both parties were concerned in respect of access. That however, in my view, is not to the point. In this context I would note while there are clearly difficulties associated with access to both the applicants’ and the respondent’s land, the existing access arrangements have been used for a number of years. [27] In resisting an unfavourable order as to costs, it was submitted that there were a number of important matters militating against such orders. First, that the proceedings had to be considered in the “context of the difficult circumstances in which the Applicant and Second Respondents find themselves (arising from the inadequate arrangements for access, parking and manoeuvring) …” In regard to this matter I do not consider it necessary to say any more than I already have, other than to point out that the fact that a negotiated settlement did not occur involved no identifiable fault on the part of the applicants and otherwise, is of no real relevance to the outcome of this application. 18 At para 2.11. -- 9 of 13 -- 9 [28] The second matter raised involves elements common to the first matter. Namely that a number of the changes proposed would have resulted in benefits to both parties.19 While not necessarily accepting the finding by the Court that the various proposals advanced on behalf of the respondent were “unconvincingly vague,”20 it was submitted that it would be unfair to make a determination in respect of costs “on the basis of such vagueness, without acknowledging that the vagueness arose from willingness by the applicant to include changes (or conditions attaching to changes) that were intended to achieve (even if not ultimately found to satisfactorily achieve) benefits for both sets of parties.” I do not find this submission to be at all persuasive. The vagueness referred to did not in any material way arise from an intention or willingness on the part of the respondent to achieve benefits for both parties. That vagueness arose primarily, if not solely, out of the respondents’ failure to be able to identify what the actual intended end use of the upper level of the proposed development was. I would observe here that in my view, that such vagueness existed did not arise out of any genuine difficulty or inability in being able to identify what the real end purpose was, but was more the result of trying to formulate an end use that might have been acceptable to the Court. [29] The third matter raised is primarily concerned with the necessity for the consent of the applicants.21 I do not intend to explore those submissions any further other than to say that the submissions made in that regard are unpersuasive. Consent was clearly required and, for the reasons explained in the substantive judgment, consent was withheld on clearly reasonable grounds.22 [30] The final matter raised was that it ought be noted that the Council had indicated in its statutory pre-request notice that it was willing to support approval of the “Requested Change”.23 The position of the Council at that stage of the approval process is of no material consequence in my view. The circumstances the council were initially considering bore little resemblance to the case advanced on behalf of the respondent at the conclusion of the hearing.24 19 At paras 2.33-2.35. 20 ROJ [15]. 21 At paras 2.36-2.37. 22 ROJ [44]-[66]. 23 At paras 2.38-2.40. 24 ROJ [74]-[80] also at [28] and [29]. -- 10 of 13 -- 10 [31] Thereafter, a number of specific submissions are made dealing with the relative success of the parties, the issue of reasonable prospects of success and the conduct of the respondent in the proceedings. It was submitted on behalf of the respondent that the Court ought not place much weight on the failure of the respondent and the success of the applicants. It was said:25 “… finally, in this regard, it is submitted that the Court would not consider the Applicant’s failure as a determinative consideration where, as here, the potential to use these proceedings to achieve a beneficial result for both sets of parties was recognised by the Second Respondents by their entering into the beneficial (although ultimately frustrated) ‘Agreement in Principle’.” [32] In this context it was also submitted:26 “In conclusion, it is submitted that the Permissible Change Request ought to be viewed as an attempt by the Applicant to take steps to ameliorate the unfortunate circumstances arising from the deficiencies in the access, parking and manoeuvring arrangements…. The nature of the Applicants proposal for the permissible change (determined by the Court to be impermissibly broad or vague) ought be seen for what it is – an attempt by the Applicant to ensure that the outcome of the Permissible Change Request accommodated, insofar as possible, both sets of parties (being both the Applicant and the Second Respondents).” (emphasis added) [33] Those submissions are, with respect, rather disingenuous as they fail to address that, in reality, any potential benefits to the applicants were but by-products of the respondent’s intention to construct a substantial two storey structure on her land in circumstances where the end use of the upper level of that structure was, in my view, unnecessarily left open and vague. To elevate the potential benefits to the applicants that might arise had the proposed development proceeded, would be a complete mischaracterisation of what the litigation was really about. [34] Returning to the prospects of success, it was also submitted:27 “There is nothing about the Court’s findings in this matter that suggest that the Applicant had no reasonable prospects in making and progressing the Permissible Change Request. 25 At para 2.43. 26 At para 3.1-3.2. 27 At para 2.44-2.47. -- 11 of 13 -- 11 Such a suggestion is inconsistent with the efforts of both sets of parties in reaching the ‘Agreement in Principle’. While the Applicant was ultimately successful, that lack of success depended upon the Court making findings on competing proposition of both fact of law. It was not a forgone conclusion. There is no substance to this ground.” [35] I do not consider it necessary to make any further observations in respect of the agreement in principle other than to make the obvious observation, namely that, when those negotiations failed to reach a satisfactory outcome, it was entirely open for the respondent to abandon the litigation. Insofar as the outcome of the case depended upon the court making findings of fact and law, that is obviously correct. However, what the submission fails to have regard to, is that on no sensible or reasonable view of things, could it be said that the respondent had any reasonable prospects of succeeding, either in respect of the facts or the law. [36] Additional submissions were made concerning the conduct of the parties. I do not consider it necessary to traverse those submissions. In my view, there was clearly no inappropriate conduct on the part of the applicants and, apart from the prospects of success issue, I am not prepared to find that the conduct of the applicant was inappropriate in some other manner or form. That said, to press the case in the manner in which she did, the respondent left the applicants with no reasonable alternative, other than to come to this court to defend their position. That the proceedings took as long as they did and involved the number of witnesses that it did, was no more than a product of the respondent’s determination to proceed with the litigation. In reaching that conclusion, I am not suggesting that the respondent was responsible for unnecessarily prolonging the proceedings. [37] At the end of the day, it is abundantly clear that insofar as success was concerned, the applicants were wholly successful and the respondent wholly unsuccessful. As has already been addressed, that of course is not the end of the matter as costs clearly do not follow the event in this jurisdiction under the SPA. That said, for the reasons given, it is my respectful opinion, that the respondent had no reasonable prospects of succeeding as her application to this Court was doomed to fail and, accordingly, involved the applicants in unnecessary and avoidable litigation. In that sense, the conduct of the respondent in prosecuting her application could be described as being frivolous. -- 12 of 13 -- 12 [38] Clearly this application is to be determined pursuant to s 475 of the SPA and, as such, it was not necessary to conclude that the proceedings were frivolous and/or vexatious before making orders as to costs. That said, for the reasons expressed above, I am clearly of the view that the case as advanced by the respondent could properly be described as frivolous. [39] Also, while it is unnecessary to reach any conclusions on the matter, given the respondent’s submissions concerning the relevance and weight that ought be applied to the provisions of the PECA dealing with costs, I would also observe that the prosecution of the case by the appellant as finally articulated might also be reasonably said to be vexatious. That is, the prosecution of the case was productive of serious and unjustifiable trouble.28 In this regard, the applicants, up to the first day of the hearing, had every reason to proceed on the basis that the respondent was intending to use the upper level or at least part thereof, for non-persuasive purposes and having regard to the intended use, had every reason to retain those concerns to the very end of the hearing.29 [40] For those reasons given the applicants are entitled to a favourable order as to costs under the SPA. Further, in the event that any material weight ought be given to the operation of the PECA, which I strongly doubt, I would have still been inclined to make the same or very similar orders as to costs. [41] For the reasons given the orders of the Court are: 1. The respondent, Raylene Gayle Donovon is to pay the applicants’ costs of the hearing before this Court on 2, 3, 4 and 5 March 2020. 2. Such costs to be agreed or otherwise assessed on the standard basis. 28 Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271, at 291 [40] citing Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 at 247. 29 ROJ at [16] and [24]-[25]. -- 13 of 13 --