The amendments made to SPA in late 2012 concerning costs in the Planning and Environment Court have now been considered in a number of cases.

Lessons

Lessons to be learnt from the cases include:-

1. Costs implications should be considered in a strategic sense at a very early stage of proceedings – even during the application phase.
2. If you are a competitor or potential competitor you will need to conduct yourself very carefully at all stages of a “competing” application.
3. All Submissions and Notices of Appeal should be considered with a focus on possible cost outcomes.
4. Offers of settlement can be a good strategy in some cases but the contents of the offer must be carefully considered to achieve maximum effect.
5. In all cases professional advice should be sought at an early stage.

Case 1

Neighbouring owners appealed against an approval given by Brisbane City Council to a not for profit organisation to enable the construction of multi-unit special needs accommodation on a 455sqm residential lot. The neighbours were unsuccessful in the appeal and the organisation sought an order for costs against them.

In this case the conduct of the neighbours was described as reasonable. It was relevant that the neighbours had obtained professional advice from a lawyer and a planner at an early stage of the matter (even though the Court ultimately did not accept the planning evidence put forward on their behalf). The Court decided that the neighbours all had a legitimate interest in the proceeding even though in some cases the impact on them was minor.

Each of the parties was ordered to pay their own costs.

Case 2

In this case the judge made a costs order against the Council. An approval had been given for a development under a Negotiated Decision Notice which replaced an earlier Decision Notice. The earlier Decision Notice acknowledged that the proposal conflicted with a code and listed sufficient grounds to support the approval notwithstanding this conflict. Unfortunately, the later Negotiated Decision Notice claimed that there was no such conflict. The approval was challenged and both the applicant and the Council accepted that the Negotiated Decision Notice should be declared invalid and set aside.

Because the applicant had communicated its acceptance of the invalidity of the approval at an early date the Court did not make a costs order against the applicant.

However, the Court was of the view that the Council should be ordered to pay costs. This was because it had made the error that was the effective cause of the Court proceedings.

Case 3

This involved a successful appeal by an applicant against a refusal by the Council to approve a multi-dwelling development in Moranbah. An offer of settlement had been made by the applicant which the applicant submitted was a reasonable offer. It was also submitted by the applicant that the development should have been approved because it was consistent with the Council’s planning scheme.

For a number of technical reasons the Court felt that even though the offer of settlement was relevant it did not exactly reflect the outcome of the Court proceedings. Additionally, even though the applicant was ultimately successful and the Court found that the applicant had a “relatively strong case” it was of the view that the Council also had a “fairly arguable case” supported by appropriate evidence.

In this case each party was ordered to pay its own costs.

Case 4

This was a very recent decision (handed down on 23 September 2013). It dealt with an appeal by the owner of an existing shopping centre against an approval of a new “out of centre” shopping centre.

Settlement offers were exchanged in this case and one of the relevant factors was that the applicant was successful in respect of each of the issues that it had identified in its letter of offer.

The end result was that the existing owner lost the appeal and was ordered to pay two thirds of the costs of the successful applicant.

Contacts

Should you require any assistance or advice in development law including Planning & Environment Court matters, please feel free to contact us as below:-

• Sean Kelly, Director
• T: 07 4911 0505
• E: sean.kelly@kellylegal.com.au

• Peter Cardiff, Director
• T: 07 3179 2711
• E: peter.cardiff@kellylegal.com.au

• Jane Young, Senior Associate
• T: 07 4911 0509
• E: jane.young@kellylegal.com.au