Objection to an expansion of issues in dispute results in an adverse costs order

The Planning and Environment Court in LMRM Pty Ltd v BrisbanCity Council [2017] QPEC 7 made an order that LMRM Pty Ltd pay the Brisbane City Council’s costs of and incidental to its application to expand the issues in dispute in the appeal, on a standard basis.

The appeal related to the Council’s decision to refuse an application for a development permit for a material change of use to expand the Normanby Hotel to include a multi-unit dwelling, hotel, short-term accommodation, shop and nightclub, and a preliminary approval to carry out building work for a heritage place.

Consent orders were made by the Court to progress the appeal forward which included the Council being afforded the opportunity to expand on the issues in dispute. The Council sought advice from its expert witnesses and in accordance with those orders notified LMRM of its further issues in dispute, which LMRM sought to contest.

The Council subsequently filed an application in the Court seeking an order to include the further issues as additional issues in dispute in the appeal.
During the hearing, LMRM abandoned its position and consented to the Council’s notified additional issues being included as additional issues in dispute.

The Council subsequently filed an application in the Court seeking its costs in relation to the earlier application to include the further issues as additional issues in dispute in the appeal.

The Court determined to award the Council’s costs of and incidental to its application to expand the issues in dispute in the appeal, on a standard basis.

Snapshot of the Court’s consideration and findings

The Court noted that in determining whether to award costs against a party:

• it had a general discretion with respect to costs;
• the discretion was broad but must be exercised judicially;
• there was no presumption that costs should ordinarily follow the event, or that the parties had qualified privilege against an adverse costs order;
• a non-exhaustive list of matters was contained in the Sustainable Planning Act 2009 to which the Court may have regard in considering whether to award costs.

The Court then proceeded to carry out an assessment of the events which gave rise to the Council making its application seeking an order for costs against LMRM.

The matter was set down for a hearing on 6 December 2016 and LMRM did not withdraw its opposition to the additional issues prior to the hearing.

The basis of LMRM’s objection was that:

• the Council’s reasons for refusal should have been included in the decision notice, and therefore the reasons in the decision notice should have articulated the full extent of the Council’s reasoning for refusal;
• leave of the Court would be necessary to include additional issues and the Council was required to explain why the issues being added were not included in the decision notice from the outset.

On the other hand, the Council contended that the position asserted by LMRM was not coherent with the nature of appeals in the Planning and Environment Court as:

• these appeals were heard by way of hearing anew;
• the hearing was not a review of the Council’s decision, but rather a fresh hearing as to whether the development application should be approved.

The Court observed that the Sustainable Planning Act 2009 provided mechanisms for the Council to provide its reasons after the commencement of an appeal such as a deemed refusal. In any case, it was not uncommon for Council to reassess its position on appeal.

LMRM ultimately conceded and advised that it no longer objected to the inclusion of the additional issues and orders were made accordingly.

In determining to award the Council costs, the Court accepted the Council’s submissions and in particular noted that:

• LMRM had the opportunity to consider the supporting material, but did not withdraw its opposition until after the hearing of the application;
• had that attitude been taken at an earlier stage, the costs associated with the application could have been obviated.

Points worth noting

An appeal to the Planning and Environment Court is by way of hearing anew and the hearing is not a review of the Council’s decision, but rather a fresh hearing as to whether the development application should be approved.

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.