For the last 22 years, the general rule in relation to costs in
the Planning and Environment Court has been that each party bear
its own costs. The Court has had a discretion to award costs in
certain circumstance (usually if it determined that the proceedings
were frivolous or vexatious), however this discretion was sparingly
The existing costs regime has facilitated a jurisdiction in
which those who could not ordinarily afford to take the risk of
being lumbered with a costs order in the event they were
unsuccessful at trial, can actively participate. It is common place
for affected residents or land owners who had made properly made
submissions against a development application to exercise their
rights to appeal an approval issued by Council to the Planning and
Environment Court, often without representation by solicitors. For
Council's, who are automatically party to most proceedings
before the Planning and Environment Court, the existing costs
regime has generally been accepted on the basis that successful
results are balanced by losses in Court. Developers have also
benefitted from a co-operative environment where problems with
their proposed developments can be addressed by minor changes often
proposed by independent experts engaged by opposing parties in the
The decision for submitters to file an appeal and the decision
by Councils to defend an appeal or originating application (to a
hearing stage) will be complicated by amendments proposed to the
current costs regime by the Sustainable Planning and Other
Legislation Amendment Bill 2012, which was introduced to
Parliament on 13 September 2012. The Bill introduces a significant
reform to the Planning and Environment Court's power to
award costs, bringing it into line with the Supreme and District
Court by providing that costs follow the event.
This broadening of the Court's discretion in relation to
costs will be enlightened by anticipated amendments to the
Planning and Environment Court Rules 2010. Until then,
there is growing speculation questioning whether access to justice
in the Planning and Environment Court will be eroded if the Bill is
enacted in its current form and more significantly for
Council's, whether this will result in situations where
important decisions concerning the protection of Planning Schemes
will be heavily influenced by the risk of an adverse costs order
which in some significant appeals could reach into the millions of
dollars. Concern also exists that the parties' co-operative
nature with respect to making changes to development applications
will be diminished if the consequence of an appeal being allowed is
an adverse costs order against the respondent Council. Removing the
incentive for parties to negotiate and achieve good planning
outcomes through changed applications would destroy a fundamental
pillar of the Planning and Environment Court.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Peter Sise explores how your contractual clause for recovery of legal costs might not do what you think it does.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).