Bourboulas & Ors v Brisbane City Council (No 2) [2016] QPEC 45 (2016) QPELR 838

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: John Bourboulas & Ors v Brisbane City Council (No 2) [2016] QPEC 45 PARTIES: JOHN BOURBOULAS and OTHERS (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 3755 of 2015 DIVISION: PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 9 September 2016 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Everson DCJ ORDER: The application is dismissed. CATCHWORDS: PRACTICE AND PROCEDURE – COSTS – where appellants were successful in their appeal against the decision of the respondent – whether the court should exercise its discretion to make an order for costs – where public interest considerations are weighed with the success of the appellants. Sustainable Planning Act 2009, s 457 COUNSEL: K Wylie for the appellant T Trotter for the respondent SOLICITORS: Direct Brief for the appellant Brisbane City Council Legal for the respondent -- 1 of 3 -- 2 [1] This is an application for costs brought by the appellants. [2] The appellants seek an order that the respondent pay their costs of and incidental to this appeal from 22 March 2016, which is the date of receipt by the parties of the joint expert reports, including the report of the heritage architects. [3] The appellants were successful in their appeal against the decision of the respondent to refuse an application for preliminary approval for building work involving the relocation of pre-1946 residential building (“the building”) from a site in Nicholson Street, Greenslopes located within the Traditional building character overlay area (“the overlay area”). Although the appellants proposed moving the building only 15 meters to the west, the building would be contained within a vacant lot just outside the overlay area.1 [4] In their joint report the heritage architects stated: “…the heritage experts agree that the proposal to remove the subject building from the existing site and relocate it on the receiving site will not result in any loss of traditional building character to either the subject building or the street and support the proposal provided the receiving site is afforded an appropriate means of character protection.”2 [5] After allowing the appeal, appropriate conditions were imposed by order of the court on 26 August 2016. [6] Pursuant to s 457 of the Sustainable Planning Act 2009 the court is given a broad discretion to make an order for costs. Costs of a proceeding or part of a proceeding “are in the discretion of the court”.3 In making an order for costs, the court may have regard to a number of matters including “the relative success of the parties in the proceeding”.4 [7] Upon receipt of the joint report of the heritage architects referred to above and the joint report of the town planners, on 22 March 2016 the town planner representing the appellants wrote to the respondent requesting a further without prejudice conference in an attempt to resolve the appeal. He stated: “It is my client’s (sic) view that such reports indicate that the appeal could be resolved between the parties without requirement for a contested hearing subject to agreement as to reasonable and relevant conditions. Can you please indicate whether Council would be willing to attend a further WP Conference to attempt to resolve this appeal?”5 [8] The same day the respondent replied: “Council does not agree with your contention that the JERs indicate that the appeal could be resolved between the parties. Also, Council 1 Bourboulas & Ors v Brisbane City Council [2016] QPEC 033 at [1]-[2]. 2 Ibid at [9]. 3 S 457(1). 4 S 457(2)(a). It was also submitted that there was a basis for awarding costs pursuant to s 457(2)(d) and (h), however the circumstances relevant to these provisions do not arise on the facts before me. 5 Affidavit of Murray Walter Bell affirmed 29 August 2916, Ex “MWB-1”, p 1. -- 2 of 3 -- 3 does not consider there is scope to narrow the issues in the appeal following receipt of the JERs. … …. Council does not see there is merit in having a further without prejudice meeting if the appellant intends to move the house outside the Traditional Building Character Overlay.” 6 [9] The appellants submit that having regard to the ultimate success of the appellants in the appeal, the respondent ought to pay their costs of the appeal on the standard basis from 22 March 2016. [10] The respondent submits that its position was justified from a public interest perspective. Further it is submitted that what was ultimately approved was novel and not previously the subject of a determination of the court. [11] Although the appellants have ultimately been successful in this appeal in a manner consistent with the joint position of the heritage architects, this will result in the removal of the building from within the overlay area where it was afforded significant protection pursuant to the respondent’s planning scheme to a site outside the overlay area and therefore outside the protection contemplated by the planning scheme. The respondent has a duty to uphold its planning scheme. The public has an interest in the provisions of the planning scheme which protect pre-1946 residential buildings being upheld. When these public interest considerations are weighed with the success of the appellants, on balance it is not appropriate to award the appellants costs in the terms sought. [12] I dismiss the application. 6 Ibid, p 2. -- 3 of 3 --