Planning and Environment Court in Queensland awards costs after relevant development application is withdrawn

In brief

The case of Conias Hotels Pty Ltd & Anor v Ross Neilson Properties Pty Ltd & Ors [2017] QPEC 65 concerned an application for costs to the Planning and Environment Court made by Conias Hotels Pty Ltd and City Commercial Holdings Pty Ltd (Applicants) against Ross Neilson Properties (Respondent).

The Respondent had lodged a development application for the retention of an existing building and the construction of a mixed use high rise development. The development application included 133 car parks with vehicle access via a laneway which was encumbered by existing easements. The easements not only benefitted the Respondent but also the Applicants. The Applicants were concerned over increased traffic and congestion due to the laneway. The Applicants were also concerned that the proposed development would limit their right to develop over the easement in the future and also that the development application did not include consent from all relevant land owners.

The Applicants' commenced a proceeding by way of an Originating Application in the Planning and Environment Court on 3 March 2016.

The hearing of the proceeding was to commence on 19 May 2016 but was adjourned after the Respondent sought to raise a jurisdictional issue. The hearing was re-listed for 28 November 2016 but the Respondent was granted leave on 25 October 2016 to discontinue the Applicant's proceeding on the basis that the Respondent's development application had been withdrawn. The Applicants sought payment of their costs of and incidental to the proceeding.

The Respondent contended that the Applicants had already enjoyed success because the development application had been withdrawn and therefore an award of costs was not necessary. The Respondent submitted that the decision to withdraw the development application was not a commercial decision and had no relation to the Applicants' proceeding. The Court found otherwise. The Court held that from the evidence given, it was clearly a commercial decision to withdraw the development application.

The Court ordered that the Respondent pay the Applicants' costs of the proceeding from 19 May 2016 to 25 October 2016.

Background

The development application was made by the Respondent to the Brisbane City Council in May 2015. The proposed development involved the redevelopment of land located at 500 George Street, as a mixed use high rise development

One of the significant issues about the development application was the proposed...