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'
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
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
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
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
whilst the majority of proceedings are already resolved before
trial, the spectre of an adverse costs order will encourage early
The new costs provisions will only apply to proceedings brought
after their commencement, which is expected to be in December
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
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.
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