PLANNING AND ENVIRONMENT COURT
 OF QUEENSLAND

CITATION:	Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54	
PARTIES:	MARK ROBERTSON and FREYA ROBERTSON
(first applicants)
And
JOHN BENNETT and SALLY BENNETT
(second applicants) 
v
BRISBANE CITY COUNCIL
(first respondent)
And
WEYERS DEVELOPMENTS PTY LTD
(ACN 102 288 237)
(second respondent)
And
RD NOMINEES PTY LTD
(ACN 109 341 791)
(third respondent)	
FILE NO:	607 of 2021	
DIVISION:	Planning and Environment	
PROCEEDING:	Application for Costs 	
ORIGINATING COURT:
	Planning and Environment Court of Queensland at Brisbane	
DELIVERED ON:	15 October 2021	
DELIVERED AT:	Brisbane	
HEARING DATE:	Dealt with on the papers (Submissions closed on 13 October 2021)	
JUDGE:	RS Jones DCJ	
ORDER:	1.	The first and second applicants are to pay 40 percent of the costs of the second and third respondents on the standard basis. 
	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – COSTS – where relief sought in substantive proceeding concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where originating application dismissed – where respondents to substantial proceeding sought costs – whether costs should be awarded under s 60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis	
LEGISLATION:	Planning Act 2016 (Qld) s 60
Planning and Environment Court Act 2016 (Qld) s 11, 59, 60
Sustainable Planning Act 2009 (Qld) s 457	
CASES:	Firebird Global Master Fund II Ltd v Republic of Nauru [No 2][2015] HCA 53; 90 ALJR 270 
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397
Mudie v Gainriver Pty Ltd & Anor [2002] QCA 546; [2003] 2 Qd R 271
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9; [2019] QPELR 662
Younie & Anor v Dender & Ors [2014] QPEC 70; [2015] QPELR 322 	
COUNSEL:	Mr S Doyle QC with Ms S Spottiswood for the first and second applicants
Mr D O’Brien QC and Mr W Macintosh for the second and third respondents	
SOLICITORS:	Connor O’Meara Solicitors for the first and second applicants
HWL Ebsworth Lawyers for the second and third respondents	

[1]	On 2 September 2021, I handed down my reasons in the matter of Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44.  The orders made by the court were that the application be dismissed and that the court would hear further from the parties if necessary as to any consequential orders.  
[2]	I am now concerned with an application made on behalf of the second and third respondents for their costs.  No such orders are sought by the first respondent.  The relief the second and the third respondents seek is as follows:
“1.	An order pursuant to s 60(1)(b) of the Planning and Environment Court Act 2016 that the applicants:
(a)	Pay the costs of the second and third respondents of the application; and
(b)	In the alternative, pay the costs of the second and third respondents of the application from 5 July 2021 onwards
(c)	On an indemnity basis and, in the alternative the standard basis
2.	Such further or other orders the court deems appropriate.”
[3]	In the substantive proceeding, the applicants challenged the decision made by the Brisbane City Council (the first respondent) to approve the proposed development of three units to be constructed on land situated at 50 Archer Street, Toowong. 
[4]	In substance, the attack on the approval of the proposed development consisted of assertions to the following effect:
1.	That in assessing and deciding the development application, the first respondent proceeded on the mistaken basis that what was proposed was a three-storey multiple dwelling development.  According to the applicants, to proceed on that basis involved a substantive error in that when viewed objectively, what was contemplated was a four-storey development.
2.	That in assessing and deciding the development application, the first respondent erred in concluding that a number of relevant provisions of its planning scheme had been complied with, in particular the transport access parking and servicing code of the planning scheme.  It was asserted that the first respondent had taken into account irrelevant considerations and/or failed to take into account relevant considerations. 
3.	It was further alleged that in assessing and deciding the development application, the first respondent erred in findings concerned with the removal and replacement of a road safety barrier and that error was caused by: 
(a)	Taking into account irrelevant considerations;
(b)	Failing to take into account relevant considerations; and/or
(c)	That the decision was one that no reasonable decision-making entity could have made.
(d)	That in assessing and deciding the development application, the first respondent erred, yet again, in finding that Performance Outcome 43 of its Multiple Dwelling Code had been met.  The allegation in this regard was to the effect that the approval which would allow the placement of refuse bins on the shared driveway would unacceptably interfere with the first applicant’s use of that driveway.
[5]	I should say that the relief sought was, in essence, an application for remedial declarations pursuant to s 11(1) of the Planning and Environment Court Act 2016 (PECA).
[6]	As identified above, the second and third respondents are seeking costs pursuant to s 60(1)(b) of the PECA.  That provision relevantly provides:
“(1)	The P & E Court may make an order for costs for a P & E Court proceeding as it considers appropriate if a party has incurred costs in one or more of the following circumstances—
(b)	the P & E Court considers the proceeding to have been frivolous or vexatious.
	An example of that is where the Court can consider that a proceeding was started or conducted without reasonable prospects of success.”
[7]	This matter was listed for review on 8 October 2021.  Having had the benefit of hearing the substantive proceeding and the benefit of the written submissions filed on behalf of the respondents, being the applicants for costs, I decided to advise the parties of my preliminary views on this matter.  I also gave some brief reasons.  For the reasons that follow, the preliminary views that I expressed that day have only changed slightly.
[8]	Before proceeding further, I would make two observations.  The first is that it is important to bear in mind that, generally speaking, the purpose of costs orders is not to punish but to compensate.  As McHugh J said in the often-cited passage from Oshlack v Richmond River Council (1998) 193 CLR 72 at [67]:
“…costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did.  As between the parties fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”
[9]	The second observation is that under s 60 of the PECA, at least in so far as it is relevant here, this Court cannot make an order as to costs unless it considers that the proceedings could be property characterised as being frivolous or vexatious.
[10]	In Mudie v Gainriver Pty Ltd & Anor, McMurdo P with Atkinson J and Williams JA in separate reasons, had regard to the dictionary meaning of the terms “frivolous” and “vexatious”.  McMurdo P and Atkinson J observed that the Macquarie dictionary defined “frivolous” as being “of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection…characterised by lack of seriousness or sense: frivolous conduct…” and “vexatious” as …causing vexation; vexing, annoying…”.
[11]	Their Honours then went onto say:
“Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious.  Although in a different context, some assistance can be gained from the discussion of the meaning of those words in Oceanic Sunline Special Shipping Co Inc v Fay where Deane J states that: ‘oppressive’ means seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’ means productive of serious and unjustified trouble and harassment, meaning apparently approved by Mason CJ….those meanings are apposite here.”
[12]	Williams JA had regard to the shorter Oxford English Dictionary which defined “frivolous” as follows:
“1.	Of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds.
2.	Lack seriousness or sense; silly.”
[13]	His Honour then went on to have regard to the same dictionary which defined “vexatious” as follows:
“1.	Causing or tending to cause vexation, annoyance, or distress; annoying, troublesome.
2.	In law.  Of an action; instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant.”
[14]	Much more recently in Sincere International Group Pty Ltd v Gold Coast City Council (No. 2), Williamson QC DCJ, after referring to Mudie said:
“The phrase ‘without reasonable prospects of success’ has been held to equate its meaning with ‘so lacking in merit or substance as to be not fairly arguable’.  A case which is not fairly arguable is one that is regarded as ‘bound to fail’.  This is a concept that falls appreciably short of ‘likely to succeed’.  A lack of success does not mean that a proceeding had no reasonable prospects, or lacked merit.” (Original emphasis footnotes deleted
[15]	Consistent with the dictionary definitions, the example given in s 60(1)(b) of the PECA is that the prosecution of a proceeding which has no reasonable prospects of success may constitute frivolous and, in certain circumstances, vexatious conduct on the part of a litigant.
[16]	As I have already indicated, to be given the benefit of any cost orders under s 60(1)(b) of the PECA in this jurisdiction requires that the conduct of a party be capable of properly being described as frivolous or vexatious.  One can only wonder what it might take to achieve costs on an indemnity basis.  Perhaps evidence of fraud or conduct verging on contempt?  In my view, the imposition of such a high benchmark is an unnecessary and undesirable fetter on this Court’s discretion to order costs where appropriate.
[17]	On behalf of the applicants, my attention was drawn to the judgment of Lockhart J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Younie v Dender.  Neither of those cases are of assistance in the circumstances of this application, in my respectful opinion.  Insofar as Fountain Selected Meats is concerned, it is unhelpful in that any reliance placed on it fails to have regard to the philosophy as to costs expressed in s 59 of the PECA and the threshold as to costs prescribed in s 60(1)(b) of that Act.
[18]	As to Younie, it can be distinguished as in that case, Robertson DCJ had clearly formed a dim view about the motives of the unsuccessful party, including as to credibility.  That case also involved what his Honour referred to as a flagrant disregard of orders of the court.  Those features are not present here.  Finally, in Younie his Honour was concerned with deciding costs under s 457 of the Sustainable Planning Act 2009.  The cost regime under that legislation bears little resemblance to that prescribed in the PECA. 
[19]	I will now turn to the merits of the application before me. As can be discerned from the reasons given in the substantive proceeding, there is little room for doubt that insofar as the pedestrian safety and refuse collection and the transport, access and parking issues were concerned, those allegations neither separately nor combined have any reasonable prospects of success.  Insofar as the pedestrian safety and refuse collection issue is concerned, the first and second applicants seemed to proceed on the basis that the introduction of the bollards was designed purely to facilitate the collection of refuse from the subject land.  Further, without any substantive basis, it was also alleged that the existing guard rail provided a superior pedestrian safety outcome than that which would be achieved by the removal of the existing guard rail and the introduction of bollards.  In my view, the following extracts from the substantive reasons sufficiently make the point:
“Under the heading ‘Conclusion’ it is then asserted:
‘In the circumstances, it is respectfully submitted that the Council’s decision to reduce pedestrian safety by removing an effective safety barrier to meet the convenience of the developer in having refuse collected off-site, as opposed to onsite, was the [sic] decision so devoid of logic that no reasonable decision-maker could have made it.  In any event, on the material before Council, it lacked an evident or rational justification.’  (Emphasis added)
Next, during oral submissions, at one stage Mr Carius said that the real issue was not the replacing of the guard rail with bollards but rather the spacing of the bollards.  In fact, he said the spacing of the bollards was a critical issue.
Notwithstanding that, the submissions then proceeded on the basis that it was the replacement of the guard rail that was in issue.  Finally in this context, Mr Carius was asked on a number of occasions to take me to any material which might at the very least indicate that the replacement of the metal barrier with the energy-absorbing bollards would reduce pedestrian safety.  Despite having 10 volumes of material before me containing no doubt more than a thousand pages, I was not taken to any material to support the proposition that pedestrian safety would be reduced.”
[20]	As I have already said, I was not taken to any evidence that the removal of the existing barrier and the replacement of it with bollards would reduce pedestrian safety.  Indeed, the engineering evidence was that the existing situation was materially worse than that proposed in respect of pedestrian safety.  Any meaningful analysis of the material which was in the possession of the first and second applicants would have revealed that to be the situation.
[21]	In the written submissions relied on by the applicants, after observing that a full safety assessment had not been undertaken, it was then said:
“… Mr Pickerill’s email did not expressly consider pedestrian safety and certainly not the design of the wide spacing between each bollard.  Although the court found that it was implicit in Mr Pickerill’s email that the proposed bollards would provide better protection for pedestrians, that finding could not extend to the applicants’ complaint about the wide spacing between each bollard, for that was not addressed in any way in the email.  
Even though the delegate’s reasons disclose consideration of bollards per say as a potential replacement for the existing guard rail, that was not the applicants’ complaint.  The reasons disclose no consideration of how the actual spacing of each single bollard 1.3 metres apart so that bins could be collected would improve the pedestrians’ safety afforded by the continuous crash barrier for low impact collisions.  
In those circumstances it was open and fairly arguable, or at least not ‘bound to fail’ to argue as the applicants did that the decision to replace a continuous pedestrian barrier that was found by the decision maker to provide ‘significant protection’ in low-speed impacts with one bollard per every 2.7 metre gap because that provided ‘greater’ pedestrian protection was unreasonable in a legal sense.”
[22]	Those submissions, in my view, fail to have proper regard to the evidence.  As identified above, on the one hand, no evidence was put before the court to permit me to reach a conclusion or draw an inference that the removal of the existing barrier and the introduction of the bollards would cause a risk to pedestrians.  On the other hand, while it can be accepted that the focus of the engineering evidence seemed to be concerned with the protection of property, it would be nonsensical in my opinion to proceed on the basis that pedestrian safety had not been taken into account.  Indeed in this regard, as much was pointed out in the substantive reasons:
“In the decision of the first respondents’ delegate it is said:
‘There is adequate clearance from the bins to the footpath and the existing guard rail will be replaced with energy absorbing bollards which will improve pedestrian safety on the footpath when compared to the existing situation that allow for refuse bins to be presented to the curb side.’” (emphasis added)
[23]	The assertion that the case for the applicants on this point was “fairly arguable, or at least not bound to fail” is not to the point.  That submission seems to proceed on the basis that it would be open for the court to draw the inference that pedestrian safety had been put in jeopardy merely by reference to the fact of the spacing between the bollards.  To proceed on that basis would be an error.
[24]	Insofar as the access and parking issue is concerned, it was asserted that the decision of the first respondent on this issue “lacked an evident or rational justification.”  In this regard, a number of matters were raised as being indicative of the first respondent taking into account irrelevant considerations or failing to take into account relevant considerations in the amended originating application.  None were made out.  Indeed, yet again, there was ample evidence to show that the first respondent had clearly given this issue appropriate consideration.  In other words, the allegations of taking into account irrelevant considerations and failing to take into account relevant considerations were groundless. 
[25]	In my respectful view, the last three of the issues raised against the decision to approve the proposed development were frivolous in the sense that when all of the relevant evidence as looked at objectively, there was never any prospect of those matters being prosecuted successfully.  To use the vernacular, they were “doomed to fail” from the outset.  They could be properly categorised as being frivolous in nature and, possibly even vexatious, although it is not necessary for me to consider that issue any further.  
[26]	Turning then to the debate about whether the proposed development was three or four storeys in height.  I reached the conclusion that the substantive allegations raised on the part of the first and second applicants were entirely misconceived.  Upon reflection, that observation was overly harsh.  This element of the applicant’s case was certainly misconceived in my opinion.  However, that has to be considered in light of this issue raising for consideration the interpretation of a provision of the first respondent’s planning scheme which, somewhat surprisingly, had not been the subject of any prior judicial consideration as far as I am aware.  
[27]	Unlike the other three matters which I have already disposed of, I consider that there was at least an arguable point in respect of this objection to the proposed development.  It involved not only the interpretation of the definition of what constituted a storey for the purposes of the first respondent’s planning scheme but also, in my view, involved the application of evaluative judgement as opposed to the reaching of a conclusion based on empirical evidence, at least to some degree.  By that I mean, an enclosed space over a considerable area may, at the time of approval, be designated as only to be occupied by a lift and stairs but still be determined to be a storey for the purposes of the planning scheme.  
[28]	Also, there were important consequences associated with the outcome of this issue.  Had the court determined that it was a four-storey structure as opposed to a three-storey structure, the level of assessment would have changed dramatically.  The proposed development would have gone from being code assessable to impact assessable with all the consequences that flow from that different level of assessment.
[29]	On balance, I agree with the approach adopted by Judge Williamson in Sincere.  In this jurisdiction, even when a party’s case is unsuccessful and could be described as weak does not mean, without more, that costs ought necessarily be awarded to the successful party.
[30]	The repeal of s 457 of the Sustainable Planning Act 2009, and the introduction of s 59 of the PECA, make clear the legislative intent is that in this jurisdiction, the strong presumption is that each party will bear their own costs of a proceeding.
[31]	Had the first and second applicant prosecuted only that matter, I would have been inclined not to make any orders as to costs.  However, in circumstances where the applicants insisted on prosecuting the other three matters to which I have referred, the second and third respondents were put to unnecessary further expense.  
[32]	That I have reached the conclusion that these parts of the applicants’ case could properly be described as frivolous is not the end of the matter.  It is also necessary to decide whether in all the circumstances it is appropriate to make any orders as to costs.  In the written submissions on behalf of the applicants, reference was made to the decision of the High Court in Firebird Global Master Fund Ltd v Republic of Nauru (No.2), where it was observed that there are:
“Good reasons not to encourage applications regarding costs on an issue – by – issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like.”
[33]	As a general proposition, that can be accepted.  However, for the reasons given, having determined those matters to be frivolous and doomed to fail from the start by necessity means that the second and third respondents incurred costs that they ought not have been required to meet.  
[34]	Four matters were also raised on behalf of the applicants which, it was said, would make it appropriate to make no orders as to costs.  The first was that “the proceedings concerned four narrowly confined, straight forward and arguable questions of law that went to the delegate’s jurisdiction in circumstances where the applicants’ rights and interests were effected…”  It can readily be accepted that the applicants’ rights and interests were affected by the decision of the first respondent to approve the proposed development.  However, for the reasons given, there was simply no basis for the attack on the first respondent’s decisions concerning pedestrian safety, refuse collection, and on-site parking issues.  
[35]	The second matter raised was that the court should be reluctant to make orders where matters of public safety are involved.  Accepting for the purpose of determining this application that the applicants were acting in the public interest and not solely for their own benefit, that does not justify the making of allegations of a risk to public safety which had no evidentiary support or basis.  
[36]	The third matter raised was that it would undermine the general rule in s 59 of the PECA to award costs in circumstances where there is nothing remarkable in the procedural steps, timing or the way the applicants conducted the proceedings.  As a general proposition, that is correct.  However, s 60(1)(b) of the PECA expressly recognises that the prosecution of frivolous or vexatious matters may lead to adverse cost orders.  
[37]	The last point raised was:
“The applicants sought review of the decision of the First Respondent.  The First Respondent was represented by experienced Senior Counsel and Junior Counsel.  If the Second and Third Respondents were concerned about the costs of the proceedings it was open for them no to participate as completely as they did.  That is particularly so if the Second and Third Respondents took the view that the Applicants arguments apparently lacked merit.”
[38]	I am unable to accept that submission.  It was entirely appropriate for the second and third respondents to be legally represented on the hearing of this application.  After all, had the applicants succeeded, it would have meant that the decision-making process for the approval of their proposed development would have to begin again under a much more stringent assessment regime.  
[39]	Finally, in paragraph 22 of the written submissions filed on behalf of the applicants, it is said to the effect that all of the matters raised involved evaluative judgment about which reasonable minds might differ.  While I am able to readily accept that insofar as the debate about the number of storeys involved is concerned, the attack on the decision-making process of the first respondent in respect of the other matters could not be said to have raised legitimate concerns about matters regarding which reasonable minds might differ.  
[40]	Whilst all of the matters raised by the applicants against approval were argued before me and dealt with in written submissions, there is little room for doubt that the most dominant issue was that concerned with the number of storeys that proposed development contained.  As I have indicated, had the applicants limited their case to that issue only, I would have been inclined to make no orders as to costs.  However, given my findings in respect of the other matters, the second and third respondent were clearly put to unnecessary and avoidable expense.
[41]	On balance, I have reached the conclusion that the appropriate orders as to costs are that the first and second applicants pay 40 percent of the costs of the second and third respondents on the standard basis.  While I do not consider that any of the matters raised in the substantive proceedings were particularly complex, the seriousness of the consequences facing the second and third respondents, had they lost the number of storeys contest, was sufficient in my view to warrant briefing senior and junior counsel. Having regard to my comments above, I am unpersuaded that I ought order any costs on an indemnity basis.  Accordingly, the orders of the court are:
1.	The first and second applicants are to pay 40 percent of the costs of the second and third respondent on the standard basis.