The Planning and Environment Court in the matter of Wust v Moreton Bay Regional Council (No. 2)  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.
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:
Mr Wust alleged that the Council had acted unreasonably over the course of the proceeding in the following ways:
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:
As to the costs incurred associated with the disputed conditions that were resolved between the parties, the parties were to bear their own costs.
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.