Cox v Brisbane City Council & Anor (No 2) [2013] QPEC 78 [2014] QPELR 92

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cox & Ors v Brisbane City Council & Anor (No 2) [2013] QPEC 78 PARTIES: BERKELEY COX, CAROL COX, LINDA ERNST, TAMLYN LAMBERT, DARIN CARRUTHERS, DANA CARRUTHERS, GEOFFREY CRITTENDEN, JANITH CRITTENDEN and TOBY ESCOTT (first appellants) and BODY CORPORATE FOR 2 HETHERINGTON STREET, COMMUNITY TITLE SCHEME 17375 (second appellant) and BJ PROPERTIES MANLY PTY LTD ACN144470075 (third appellant) and MAYNE PROPERTY DEVELOPMENT PTY LTD ACN009793444 (fourth appellant) and BRISBANE CITY COUNCIL (respondent) and CHILDHOOD CANCER SUPPORT INC (co-respondent) FILE NO/S: BD 858 of 2013 DIVISION: Planning and Environment Court ORIGINATING COURT: Brisbane DELIVERED ON: 13 December 2013 DELIVERED AT: Brisbane HEARING DATE: On the papers – submissions received 22 October to 11 November 2013 JUDGE: Rackemann DCJ ORDER: Each party bear their own costs of the proceeding, -- 1 of 10 -- 2 including their own costs of the application for costs CATCHWORDS: Planning and Environment – Costs – Application for costs by successful applicant/co-respondent against unsuccessful objector/appellants – Where issues related to compliance with the planning scheme and the acceptability of amenity impacts – Nature of the parties‘ interests – Whether ownership of adjoining rental property, the amenity of which may be affected, is a relevant commercial interest – Weight to be given to that in circumstances – Relative strength / weakness of appellant‘s case – Where appellants had taken advice as to prospects – Where conduct of appellants was reasonable – Where not all appellants likely to suffer significant amenity impacts but a respectable unitary case was run – Costs of unsuccessful costs application COUNSEL: A Walls for the appellant R Traves QC and N Loos for the co-respondent SOLICITORS: Gantt Legal for the appellant Norton Rose Fulbright for the co-respondent -- 2 of 10 -- 3 [1] This submitter appeal was against the Council‘s approval of a development application by the co-respondent (a not-for-profit organisation) to facilitate a multi- unit development, for special needs accommodation, on a 455m2 residential allotment currently improved with a single detached character house. The appeal was dismissed on 6 September 2013, at which time reasons were published. Subsequently, the successful co-respondent has applied for orders that all bar one of the appellants pay its costs of and incidental to the proceeding. The successful respondent did not seek a costs order. [2] The subject appeal was lodged this year, and so is subject to the new costs provisions of s 457 of the Sustainable Planning Act 2009 (SPA). By reason of s 457(1), costs of the proceeding are in the discretion of the Court. The discretion is 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, as was previously the case in SPA. [3] The discretion, while expressed in general terms, must be exercised judicially and having regard to relevant circumstances. A non-exhaustive1 list of considerations to which the court may have regard appears in s 457(2) as follows: ― (a) the relative success of the parties in the proceeding; (b) the commercial interests of the parties in the proceeding; (c) whether a party commenced or participated in the proceeding for an improper purpose; (d) whether a party commenced or participated in the proceeding without reasonable prospects of success; (e) if the proceeding is an appeal against a decision on a development application and the court decides the decision conflicts with a relevant instrument as defined under section 326(2) or 329(2), whether the matters mentioned in section 326(1) or 329(1) have been satisfied; (f) if the proceeding is an appeal to which section 495(2) applies and there is a change to the application on which the decision being appealed was made, the circumstances relating to making the change and its effect on the proceeding; (g) whether the proceeding involves an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party to the proceeding; (h) whether a party has acted unreasonably leading up to the proceeding, including, for example, if the proceeding is an appeal against a decision on a development 1 See s 457(3). -- 3 of 10 -- 4 application, the party did not, in responding to an information request, give all the information reasonably requested before the decision was made; (i) whether a party has acted unreasonably in the conduct of the proceeding, including, for example— (i) by not giving another party reasonable notice of the party's intention to apply for an adjournment of the proceeding; or (ii) by causing an adjournment of the proceeding because of the conduct of the party; (j) whether a party has incurred costs because another party has introduced, or sought to introduce, new material; (k) whether a party has incurred costs because another party has not complied with, or has not fully complied with, a provision of this Act or another Act relating to a matter the subject of the proceeding; (l) whether a party has incurred costs because another party has defaulted in the court's procedural requirements; (m) whether a party should have taken a more active part in a proceeding and did not do so.‖ [4] Factors which were said to be potentially relevant when the court (under its former name) last had a general discretion as to costs included: ―… whether relevant planning issues were raised, whether there was a reasonable basis for parties to object to the initial application and to initiate proceedings to appeal against a decision of the local authority … and whether supporting town planning evidence was available and / or called in support of such objections.‖2 [5] In this case, the co-respondent was substantially successful, although the primary decision of the Council was not left entirely undisturbed. The Court imposed additional conditions, to ensure renovation of the existing dwelling for the benefit of the visual character of the area and to require additional screening to mitigate, at least to some extent, the likely amenity impact of the proposal on the adjoining property at 8 Hetherington Street. The first of those was to entrench what the co- respondent intended to do while the second was not opposed by the co-respondent. [6] The co-respondent‘s success is a relevant consideration, but is not the only one. As is evident from other considerations listed in s 457(2), the interests and conduct of the parties, both leading up to and in the proceeding, are among the matters which may also be considered. 2 Zieta No 59 Pty Ltd v Gold Coast City Council [1986] QPLR 150 at 165-166, see also Buss & Turner v Bundaberg City Council [1987] 1 QPLR 80 at 88-89 and Solomon Services v Woonyarra Shire Council [1998] 2 Qd R 202 at 207. -- 4 of 10 -- 5 [7] The co-respondent submitted that the appellants against whom an order is sought were not acting to protect their amenity but variously had commercial motivations or motivations which never became clear during the trial. [8] The first appellants include people who reside in the locality and have an obvious interest in the character and amenity of their area, and of Hetherington Street in particular. Linda Ernst is the adjoining neighbour at 8 Hetherington Street. Her amenity will obviously be affected to some degree (albeit not unacceptably as I have found) by the proposal. Her interest is obvious and the co-respondent does not seek costs against her. [9] Ms Lambert‘s interest is equally obvious. As recorded in the reasons for judgment, Ms Lambert lives with her husband and children at 10 Hetherington Street, immediately adjoining Ms Ernst. The amenity enjoyed from that property will be affected to some degree, because residents of that property presently look out, across the rear of the Ernst house, to the backyard of the subject site, where the multi-unit development is to occur. The extent of impact is obviously less than for Ernst, but the Lambert interest is no less obvious. She gave evidence at the hearing by an affidavit, which expressed her concern about matters of relevance to the town planning issues in the case. [10] The Crittendens also live in the street, at 1 Hetherington Street. Mrs Crittenden gave evidence by an affidavit. She was not required for cross-examination. It is reasonable to infer that the Crittendens were motivated by the matters contained in Mrs Crittenden‘s statement. Those concerns included the alleged overdevelopment of the site and associated amenity issues3 of relevance. [11] Mr Escott did not give evidence at the hearing. The affidavit of Mr Cox, filed in response to the costs application, reveals that Mr Escott is the owner and a former resident of another house in the street, at 3 Hetherington Street. The Carruthers also did not give evidence at the hearing. They reside in a townhouse at 4/2 Hetherington Street, the courtyard of which adjoins the subject development4. 3 Including with respect to the effect of on-site parking and access arrangements. 4 Affidavit of Berkeley Cox, para 8. -- 5 of 10 -- 6 [12] It was submitted, on behalf of the appellant, that evidence of each appellants‘ interest should have emerged in the evidence at trial, but I see no reason to deny the appellants the opportunity to file relevant affidavit material in response to the application for costs. [13] The other members of the first appellant group are Mr and Mrs Cox. My reasons for judgment recorded that Mrs Cox has an interest in all but two of the units / townhouses in the complex to the immediate north of the subject. Mrs Cox gave evidence by affidavit at the hearing. Her concerns related to the impact of the proposal on the privacy and amenity of those units which would overlook the new multi-unit development. The affidavit by Berkeley Cox discloses as follows: ―2. I am the Chairman of the Body Corporate of a complex of 6 home units and 4 town houses (‗the Unit Complex‘) located at the corner of Butterfield and Hetherington Streets, Herston. I have held that position since November 1994. The proposed development at 6 Hetherington Street adjoins the Unit Complex. 3. My family has a proprietary interest in 8 of the 10 units in the complex. Details of the ownership of the Unit Complex are: (a) Units 1 to 4, 7 and 10 are owned by Mayne Property Development Pty Ltd which acts as Trustee for the Cox Family Trust. Directors of the Trustee are Berkeley and Carol Cox. (b) Unit 9 is owned by B J Properties Manly Pty Ltd as trustee for the BJ Trust. Sole Director of the Trustee is Carol Cox. (c) Unit 8 is owned by Eljabeto Pty Ltd as trustee for the Eljabeto Trust. Sole Director of the Trustee is Carol Cox (this Trust was created in June 2013). (d) Units 5 and 6 are owned by Mrs Michele Musgrave for whom I hold a Power of Attorney. Mrs Musgrave‘s husband died of cancer in 2007 and at the request of her late husband I have managed her affairs since that date. … 11. My personal interest in the matter extends to representing the interest of the tenants of the unit complex, as power of attorney for Mrs Musgrave and as Chairman of the Body Corporate of 2 Hetherington Street.‖ [14] Reflecting his concern for the amenity of the units, Mr Cox deposes that, notwithstanding the Court‘s decision to dismiss the appeal, he retains concerns as evidenced in steps he has since taken to minimise impacts including: ― (a) The installation of air conditioners at a cost of $3200 per Unit. Installations in four units have been completed. The four townhouses were already air- conditioned. Prior to the proposed development of 6 Hetherington Street there was no need to air condition the 6 units but since approval of the development we feel it is necessary for ongoing comfort of the residents of the units, particularly in relation to dust and noise during construction, and the noise and privacy issues once the proposed development is completed. -- 6 of 10 -- 7 (b) The installation of screening to the balcony of Unit 10 (which overlooks 6 Hetherington Street) at a cost of $3080. I plan to install further screening to bedrooms of this unit and other units whose bedrooms overlook the proposed development in the near future‖ [15] It was pointed out that the interest of those who own rental property can properly be described as commercial, for the purposes of s 457(2)(b), even though they might not be commercial competitors in the conventional sense. That may be so, but the weight which will be placed upon the commercial interests of the parties, in the exercise of the discretion, will vary according to the circumstances. The explanatory memorandum to the Bill which introduced the new costs regime referred to the example of: ―commercial competitors fighting in court for the purposes of delay – knowing that even if the case is unsuccessful they will not be penalised in costs yet will achieve their desired outcome.‖ [16] This is not an example of conduct of that kind. I do not suggest that the above example is the only circumstance in which the commercial interest of an unsuccessful litigant will be of relevance, but in a case such as this, where the interest is an understandable concern for the protection of amenity for the residents of a rental property in close proximity to the proposed development, I am not inclined to give the ―commercial‖ nature of the interest of the unsuccessful litigant great weight. [17] The co-respondent sought to make something of the fact that it is a charity. Accordingly, such costs as it bears must come from donations or from the limited resources it receives from government. It is difficult to see why that should have a substantial bearing on the exercise of the discretion. In its reply, the co-respondent acknowledged that, even at its highest, it is not a determinative factor. [18] It was submitted, on behalf of the co-respondent, that the issues raised by the appellants were not strongly arguable. The issues were dealt with, in some detail, in my reasons for judgment and it is unnecessary for me to repeat all of what is there set out. In summary, the issues focussed on compliance or otherwise with the planning scheme (particularly the LMR Code) and the acceptability of amenity impacts. They were bona fide matters of town planning relevance. -- 7 of 10 -- 8 [19] Insofar as compliance with the planning scheme is concerned, the proposed development was substantially at odds with the acceptable solutions in the relevant code, namely the LMR Code. Those acceptable solutions represent the preferred way of meeting the corresponding performance criteria. The applicant/co- respondent, as the party with the onus, sought to demonstrate the appropriateness of its alternative solutions, having regard to the relevant performance criteria. [20] The performance criteria employ language which places more reliance on evaluative judgment that objective specific measurement. They are matters upon which reasonable minds can differ. Whist I ultimately came to the conclusion that the relevant performance criteria were met, that was not a foregone conclusion. [21] The case also required an evaluative assessment of the acceptability of amenity impacts. Again, whilst I found the amenity impacts to be acceptable, I respect that another view was open. [22] The appellants‘ conduct was reasonable, both leading up to and in the proceeding. Consistently with their conduct in engaging competent town planning consultants to formulate their submission in respect of the development application, they obtained appropriate professional advice and assistance in respect of the appeal. Competent solicitors and a competent barrister were retained. The issues raised were of relevance. The prosecution of the appeal was reasonably expeditious. The appellants proceeded only after receiving advice from their lawyers and their town planner that they had reasonable prospects of success5. The presentation of the case was focussed and efficient. The evidence presented was relevant and included evidence from a qualified and experienced town planner, who had formed professional views supportive of the appellant‘s case. It is true that I ultimately did not accept that planner‘s approach (including with respect to the weight to be placed on the acceptable solutions and his view that the town plan effectively set its face against multi-unit developments on lots of this size and required the backyard of lots of this size to be preserved), but the appellants‘ conduct was, it seems to me, reasonable. 5 Affidavit of Cox, para 13. -- 8 of 10 -- 9 [23] I do not accept the submission, made in the co-respondent‘s reply that ―the case of all of the appellants at trial was so unmeritorious that the hearing was not necessary‖. I do not consider that this is a case where it would be appropriate to make a costs order on the basis of s 457(2)(d). [24] A matter to which the co-respondent drew particular attention was that ―there were no findings however, that any of the other appellants (other than Ernst) would be significantly impacted by the proposed development…‖. It is true that the amenity impact will be greatest on Mrs Ernst‘s property and it was the acceptability of the impact on that property which was the primary focus of the amenity issue. Indeed, as the reasons for judgment recorded: ―Mr Ramsay agreed that, leaving traffic to one side (discussed later), the impact of concern was almost entirely to the area at the rear of 8 Hetherington Street.‖ [25] It should be remembered however, that alleged amenity impacts were not limited to 8 Hetherington Street. As has already been noted, there are other properties which will experience some (albeit a lesser) amenity impact. Further, concerns were raised about the impact of the development on parking and traffic movements in the street, which would affect other residents. It is fair however, to say that the potential impacts upon others were of a markedly lower level than for the Ernst property. [26] I do not consider however, that the relatively lesser level of the likely impact upon the other appellants (ie other than Ernst) should necessarily lead to a costs order against them. It has already been observed that all had a legitimate interest in the subject matter of the proceeding and acted reasonably. The level of impact on an individual appellant, considered in isolation, might have been relatively modest, but the co-respondent was not faced with numerous discrete cases. The case was run as a unitary case that the proposal ought not be approved having regard to the planning scheme (particularly the LMR Code) and to amenity impacts which, it was contended, were unreasonable for at least one of the appellants. That case was reasonably arguable. That the level of potential direct impact on each appellant was not equal to that on the Ernst residence does not lead me to conclude that those appellants ought not to have participated in the appeal or that there should be differential costs orders. -- 9 of 10 -- 10 [27] There was a suggestion that the co-respondent is not entitled to professional costs, in any event, because it was allegedly being represented on a pro-bono basis. As was pointed out in the co-respondent‘s reply however, that is best left to a later stage. In the event that a costs order were made, the costs agreement could be disclosed for the purposes of the assessment. [28] This is a case where the co-respondent has been successful in resisting an appeal against a decision to approve a development which is substantially at variance with the acceptable solutions in the applicable code. The appellants, while unsuccessful, had a legitimate interest in the subject matter of the proceeding, raised bona fide matters of town planning relevance, were supported by the professional opinions of a qualified and experienced town planner, acted reasonably both in the lead up to and in the proceeding, including by retaining appropriate professional assistance and taking advice as to prospects before proceeding. While not all of them are likely to suffer significant direct amenity impacts from the proposal, they ran a unitary and respectable case. On balance I exercise the discretion by ordering that each party bear its own costs. [29] The appellants cross-appealed for their costs of resisting the co-respondents‘ costs application. It was submitted that the genuine interests of each of the appellants was readily ascertainable, even though the appellants saw fit to file affidavit material adducing further evidence about that. Even if that were so, it would not follow that the co-respondent should bear the costs of its unsuccessful application for costs. The discretion of the court is broad. The co-respondent obviously had an arguable basis for seeking the favourable exercise of the discretion, given, at the least, its success in the litigation. Each party should bear its own costs of this application. -- 10 of 10 --