(Jones DCJ - 1 July 2015)
Stankovic v Brisbane City Council (No. 2) [2015] QPEC 27

Application for costs – where appellant / applicant and respondent / applicant both made an application for costs in respect of a proceeding dealt with on 30 April 2015 – where substantive proceeding concerned with an appeal against certain conditions imposed by the respondent Council – where appellant maintained his position notwithstanding material compromises by his expert witness – where material aspects of appellant's evidence unsatisfactory - where unlawful works of appellant caused nuisance to adjoining land.

Facts: This matter concerned applications for costs by both the appellant and the respondent.

The appeal related to an Enforcement Notice issued in relation to works for the development of a house, swimming pool and tennis court on land located at Morningside.

The issues for the Court at the initial hearing had been:

  1. whether the appellant had carried out filling in breach of the development conditions and the relevant planning schemes;
  2. whether the works had caused ponding impacting on neighbouring properties; and
  3. if so, whether remedial works proposed by the respondent's engineer were reasonably necessary to rectify the problems resulting from the introduction of the fill.

The respondent's engineer had identified a number of remedial works, including the removal of fill from the surface of an access easement.

The appeal had been allowed subject to the appellant being required to comply with the conditions package of the respondent as modified by the drainage relief works identified by the respondent's engineer, save for the requirement to lower the surface level of the access easement.

The respondent contended for a favourable costs order on the basis that the appellant had systematically filled the site in breach of the conditions of approval, had falsely denied placing the fill on the site and had modified his position to best suit his case.

The appellant also sought costs and argued that he was the innocent victim of unlawful uses on his land and that the respondent's conduct lacked "justification and common sense".

Decision: The Court held:

  1. The appellant's submissions on costs were without merit and accordingly his application for costs should be dismissed.
  2. This was not a case of unintended unlawful works occurring. It was a deliberate and systematic course of conduct which resulted in a nuisance being caused to neighbouring properties. Issues raised in the proceeding went beyond the personal rights and interests of the parties.
  3. There was no doubt that the respondent was largely successful in the appeal. The only success achieved by the appellant was not being required to carry out the excavation works associated with the easement. That issue occupied little time in the conduct of the appeal and the appellant's success was largely the result of an unprompted concession on the part of the respondent's expert.
  4. The history of the matter revealed a course of conduct on the part of the appellant which made avoidable litigation necessary.
  5. Given the level of success enjoyed by the respondent and the limited impact the easement issue had in the overall conduct of the appeal, it was appropriate to order the appellant to pay 85% of the respondent's costs.