Australia: The winner takes it all: costs to follow the event in the Planning & Environment Court
Planning & Environment Alert

The financial stakes associated with litigation in the Queensland Planning & Environment Court are set to increase, with the Newman Government's first raft of significant planning reforms heralding the end of the 'cost free' jurisdiction.

Currently, parties to proceedings in the Queensland Planning & Environment Court generally bear their own litigation costs. Changes proposed by the Sustainable Planning and Other Legislation Amendment Bill 2012, introduced into the Queensland Parliament on 13 September 2012, would mean that a successful party would be entitled to recover its costs from an unsuccessful party unless the Court orders otherwise, as occurs in most other courts.

The requirement that parties bear their own costs was founded on the basis that the development process is of a public nature and interested stakeholders, including local authorities, local residents and community groups, ought to be given the opportunity to exercise their legal rights without the fear of adverse costs sanctions unless, for example, the proceedings are 'frivolous or vexatious'.

In practice, the 'cost free' system fails to discourage appeals that are baseless or have limited prospects of success, including appeals by commercial competitors brought to delay and obstruct development. In a sluggish economy under a Government that is seeking to stimulate development, this was viewed as a roadblock to development.

The change is also directed towards the speedy resolution of proceedings by encouraging the parties to come to the negotiating table early. In particular, the Court has a discretion to order that the parties bear their own costs, and the specific circumstance where this is foreshadowed is where the parties participate in alternative dispute resolution and resolve proceedings early.

What the change to the costs regime will mean for those involved in the development industry is that:

• the stakes are higher when litigating in the Planning & Environment Court. There is the benefit of being able to recover costs when successful, however, it comes with greater financial risk if unsuccessful, particularly where there are a number of other parties involved
• an early and detailed consideration of likely prospects has become more desirable and proceedings lacking in merit are discouraged
• whilst the majority of proceedings are already resolved before trial, the spectre of an adverse costs order will encourage early resolution.

The new costs provisions will only apply to proceedings brought after their commencement, which is expected to be in December 2012.

At DibbsBarker, our Planning and Environment team are available to guide you through the development assessment and appeal process to optimise your prospects of a successful outcome that meets your commercial objectives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.