Council was ordered to pay the applicant’s costs insofar as it related to a hearing to determine whether conditions ought to be included in a development approval for a residential development in Morayfield

The Planning and Environment Court in the matter of Wust v Moreton Bay Regional Council (No. 2) [2017] QPEC 36 made an order requiring the Moreton Bay Regional Council to pay Brian Wust’s costs of the appeal to the extent that the costs related to the disputed conditions. Otherwise, each party was to bear their own costs in the proceeding.

The proceeding originated from an appeal filed in the Court by Mr Wust against the Council’s deemed refusal of his development application for twenty dwelling units over two stages on land located in Morayfield. Following the filing of the appeal, Mr Wust and the Council agreed on all conditions of a development approval, except for two conditions which related to the orientation of two dwellings and the requirement for a pedestrian pathway to provide a direct link to the main road. The Court made an order that the appeal be allowed and the development application be approved subject to conditions excluding the two disputed conditions.

Mr Wust subsequently made an application to the Court seeking an order that the Council pay his costs of the proceeding. The Council submitted that it was appropriate that each party bear their own costs.

Ultimately, the Court determined to award costs to Mr Wust, to the extent that the costs incurred concerned the disputed conditions. However, to the extent costs were incurred outside of resolving the disputed conditions, each party must bear their own costs of the proceeding.

Snapshot of the Court’s consideration and findings

Section 457 of the Sustainable Planning Act 2009 conferred a broad discretion to the Court in relation to awarding costs in a proceeding, and that the discretion was to be exercised without a presumption that costs would follow the event, or on the basis that there was qualified protection for parties against an adverse costs order.

In making an application for costs, Mr Wust relied on the following (non-exhaustive) matters under section 457(2) of the Act to which the Court must have regard:

• the relative success of the parties in the proceeding;
• whether a party commenced or participated in the proceeding without reasonable prospects of success;
• whether a party had acted unreasonably leading up to the proceeding; and
• whether a party had acted unreasonably in the conduct of the proceeding.

Mr Wust alleged that the Council had acted unreasonably over the course of the proceeding in the following ways:

• the Council had previously approved an identical development on the same street in accordance with the requirements of its planning scheme;
• the appeal proceeding was required as a result of the Council’s failure to make a decision, and the decision was only made upon being directed by the Court;
• some of the conditions imposed by the Council were contrary to its other decision to approve an identical development on the same street;
• the Council was so adamant that the conditions should be imposed which resulted in its own expert expressing an opinion that the other approval should not have been given;
• the Council was stubborn and deliberate in its insistence on the conditions.

As a result of the conduct of the Council, Mr Wust submitted that he should not be required to incur the costs of the appeal.

The Council’s response was that it did not act unreasonably leading up to or during the proceeding for the following reasons:

• Mr Wust refused the Council’s request for a second extension to the decision making period, which resulted in the commencement of an appeal against a deemed refusal;
• the Council gave concessions on a number of matters in dispute in an attempt to resolve the matter and conducted the proceeding (on advice by legal representatives and a respected and experienced town planning expert) efficiently and expeditiously;
• the Council was acting in the public interest in the light of perceived conflicts with the planning scheme.
• The Court however accepted Mr Wust’s submissions and in making the order noted the following:
• The Council’s approach was unusual given its previous approval of the other identical development on the same street. Whilst the planning scheme had changed, the changes did not meaningfully alter the position.
• The Council’s position was ‘entirely unpersuasive’ particularly having regard to the factual context of the proposed development and the planning scheme provisions.
• In litigating the conditions, Mr Wust was put to cost and expense that could have been avoided if the Council had employed a reasonable and practical approach.

As to the costs incurred associated with the disputed conditions that were resolved between the parties, the parties were to bear their own costs.

Points worth noting

The Court in determining whether to award costs against a party has a general discretion with respect to costs and there is no presumption that costs should ordinarily follow the event, or that the parties have qualified privilege against an adverse costs order. Further, an order for costs is not made to punish an unsuccessful party, but rather to compensate the successful party.

The Court will give consideration to whether litigation could have been avoided if a reasonable and practical approach has been adopted by the parties, and in the event that the parties co-operate to resolve contentious issues, it is appropriate for the parties to bear their own costs.