Ferreyra v Brisbane City Council (No 2) [2016] QPEC 13

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Ferreyra & Ors v Brisbane City Council & Anor (No 2) [2016] QPEC 13 PARTIES: ARTURO FERREYRA AND STELLA FERRAYRA; BEN ANDERSON; GLENN SIM; SAMANTHA JENSEN; BRIDGET BARKER; MARCO FARAONE; JONATHAN COOK; CHRISTINE JENSEN (Applicants) v BRISBANE CITY COUNCIL (First Respondent) & BRIAN E FITZGIBBONS FAMILY TRUST (Second Respondent) FILE NO/S: 1149/15 DIVISION: Planning and Environment Court PROCEEDING: Application for costs DELIVERED ON: 29 March 2016 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Bowskill QC DCJ ORDER: Each party bear their own costs of the proceedings. CATCHWORDS: PLANNING AND ENVIRONMENT – Costs COUNSEL: A Skoien and D Purcell for the Applicants C Hughes QC, with M Williamson, for the Second Respondent SOLICITORS: Mills Oakley for the Applicants Dibbs Barker for the Second Respondent -- 1 of 4 -- 2 Introduction [1] On 3 March 2016, I delivered my reasons for dismissing the application under s 456 of the Sustainable Planning Act 2009 (Qld) (SPA), which sought declaratory relief and consequential orders in relation to the Council’s decision to approve the second respondent’s request to change an existing development approval: Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10. [2] The second respondent has applied for an order that the applicants pay its costs of the proceeding, incurred on and from 17 October 2015, on the standard basis. The Council seeks no order as to costs. The applicants say that the parties ought to bear their own costs. [3] The power of the court to make an order for costs is conferred by s 457(1) of the 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.” [4] The discretion is a broad one, to be exercised judicially, but without any presumption that costs ought to follow the event, or otherwise, on the basis that there is some qualified protection against an adverse costs order. [5] The matters the court may have regard to in exercising the discretion include, but are not limited to, the matters set out in s 457(2), relevantly: (a) the relative success of the parties in the proceeding; (b) the commercial interests of the parties in the proceeding; (d) whether a party commenced or participated in the proceeding without reasonable prospects of success; (h) whether a party has acted unreasonably leading up to the proceeding; and (i) whether a party has acted unreasonably in the conduct of the proceeding. [6] The second respondent submits that the discretion ought to be exercised in its favour, given that it was wholly successful in resisting the application; the applicants’ application, it says, did not have reasonable prospects of success; and the applicants unreasonably failed to accept an offer to settle put to them in October 2015. [7] It is correct to say that the applicants were wholly unsuccessful. While the success of a party is not a determinative factor it is clearly a relevant and, in some cases, -- 2 of 4 -- 3 significant consideration.1 This is particularly so in cases involving commercial competitors.2 [8] This is not such a case. [9] The applicants in this case are the owners of residential units in the Freedman Building. Three of them are also residents of those units. They were motivated to bring the application by concerns about the impact of the acoustic wall on the amenity of their residential units, in particular, their access to natural light, ventilation and visual amenity. Although the interest of a person owning a unit as an investment can be described as commercial, for the reasons given by Rackemann DCJ in Cox at [16], I do not give the commercial nature of the applicants’ interest great weight in the present context. [10] The position of the applicants can be contrasted with the second respondent, which is the owner and operator of the Fringe Bar on the adjacent land; and which sought to make a permissible change to its development approval, incorporating the acoustic wall, in furtherance of its commercial development proposal to expand the Fringe Bar. [11] As to the question of prospects of success, just because the applicants were unsuccessful does not mean the application had no reasonable prospects or lacked merit. The proceeding, being analogous to judicial review, required consideration within a narrow framework, involving technical legal issues, in some respects without the benefit of previous authority expressly dealing with the points. All parties, in my view, approached the proceeding as though it involved a broader framework, to an extent straying into the merits of the decision. It was decided adversely to the applicants on the basis of the applicable judicial review principles, which did not permit consideration of the merits of the Council’s original decision. [12] The offer made in October 2015 was that the second respondent would install some glass windows in the acoustic wall (to comprise not more than 5% of the overall area), and the application be dismissed with each party bearing their own costs.3 In circumstances where the applicants were trying to overturn the Council’s decision to approve the acoustic wall as a permissible change, for present purposes, I do not think it was unreasonable to reject the offer, which involved changing the wall in such an apparently minor way. Acting unreasonably, for the purposes of s 457(2)(h) and (i), includes (but is not necessarily limited to) conduct that leads to unnecessary, avoidable or wasted expenditure for a party.4 It is not conduct that, simply by virtue of the proceeding continuing, involves the other party incurring costs. Where a party 1 Nadic Investments Pty Ltd v Townsville City Council & Anor [2015] QPEC 48 at [6], referring to 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 (No 2) (2015) QPELR 168 at [3] and [30]. 2 See YFG Shopping Centres at [20]-[21]. 3 Exhibit MTG-2 to the affidavit of Madonna Griffin. 4 See, by analogy, Birri Gubba (Cape Upstart) People v Queensland [2008] FCA 659 at [27] and [35] per Rares J. -- 3 of 4 -- 4 legitimately, and on reasonably arguable grounds, seeks to engage the processes of the court, and persists with that, in the face of an unpersuasive offer from the opposing party not to, that is not unreasonable. [13] Although the applicants were unsuccessful, it was not unreasonable for them to have brought the application. It was the only procedural option available to them, in circumstances where they had, I accept, genuine concerns about the impact of the acoustic wall on aspects of their amenity, and genuine concerns about the decision- making process undertaken by the Council in approving the acoustic wall as a permissible change. It is in the public interest that there be accountability in the processes of decision-making regarding development under the SPA, and parties such as the applicants in this case ought not be deterred by fear of adverse costs orders, where they invoke the court’s processes to challenge the legality of such decisions. [14] Notwithstanding the narrow compass of the present proceeding, as I have already noted, all parties seemed, at the outset at least, to have blurred the lines, in terms of the issues and relevant evidence, by straying into the merits of the decision. That is not a criticism that can be directed only at the applicants. I anticipate that a considerable amount of the costs leading up to the hearing would be taken up by preparation of material not admissible in relation to the relevancy and unreasonableness grounds; although said to relate to discretionary considerations, had I otherwise found the Council’s decision was attended by legal error. It would not be fair, in my view, to lay these costs at the feet of the applicants; nor would it be easy to work out the costs properly referable to the review grounds. [15] There are also reserved costs of the second respondent’s unsuccessful application to vacate the hearing (Ferreyra v Brisbane City Council [2016] QPEC 7) to be dealt with. [16] Taking all of these matters into consideration, I am not satisfied that it is appropriate to order the applicants to pay the second respondent’s costs. I will order that each party bear their own costs of the proceeding. -- 4 of 4 --