Developers, State and local Governments must consider all options when they are involved in a dispute in the Planning and Environment Court of Queensland.
The Planning and Environment Court of Queensland (PEC) has continued to implement reforms to modernise operations, simplify procedures and encourage negotiated outcomes between the parties.
The PEC is established under the Sustainable Planning Act 2009 (SPA) and is a division of the District Court of Queensland. It has jurisdiction to determine various types of disputes, including appeals against decisions on development applications, conditions of development, and infrastructure charges attached to development approvals.
In recent years the PEC has appointed a full time Alternative Dispute Resolution Registrar (ADR Registrar), who, as part of the PEC's case management process, conducts mediations and case management conferences between the parties free of charge in order to encourage a negotiated outcome. These measures are not new, and have been part of a tight case management procedure adopted by the PEC which has resulted in approximately 90% of cases settling before hearing.1
The release in late May 2013 of three new practice directions emphasises the importance the PEC has come to place on mediated outcomes. The new practice directions give effect to amendments made to the SPA in late 2012, and set out the procedure by which the ADR Registrar will have an enhanced role in the management of cases before the PEC. The practice directions:
- in cases involving conditions of approval or the infrastructure charges, continue to require the parties to participate in a form of alternative dispute resolution before the ADR Registrar within one month of the commencement of the proceedings, unless an application has been made for the proceeding to be heard and decided by the ADR Registrar;
- give the ADR Registrar the power to make an order or issue a direction provided:
- both parties consent;
- the order or directions relate to or are made at the conclusion of an ADR conference; or
- the Registrar has been directed to hear and decide the proceeding by the PEC; and
- contemplate the PEC being given the power to review a decision, direction or act of the ADR Registrar.
While the extent to which the ADR Registrar's powers will be exercised remains to be seen, it is fair to say that the practice directions contemplate the ADR Registrar having a larger role in dispute resolution and case management within the PEC. In many cases, it seems that parties may not necessarily need to appear before a judge to progress resolution of a dispute, except for the making of final orders.
The changes to the ADR Registrar's powers are consistent with amendments to the SPA in late 2012, which also provided the PEC with a general discretion to award costs against an unsuccessful party, having regard to matters that are set out in SPA. Importantly, SPA provides that if the parties to a dispute participate in a mediation and the proceeding is resolved during the ADR process or soon after, the parties bear their own costs of the litigation – further impetus for the parties to work toward resolving their dispute early, without having to seek final determination from the PEC.
The changes are indicative of the PEC's willingness to ensure that parties to PEC litigation are afforded every opportunity to attempt to resolve their disputes before requiring the PEC to make a determination on the issues, and are evidence of the PEC's attempts to reduce the parties costs associated with litigation. This has the potential to make dispute resolution more efficient and affordable for cost-sensitive litigants.
In terms of procedure, the PEC has also recently advised that it is implementing a system of e-trials, enabling the PEC to manage key disclosed documents on a dedicated, secure website, to which only parties will have access. The case-specific website will be used to access and display documents electronically for quick reference by the PEC during the hearing of preliminary points and the determinative hearing of the matter, without the need to reproduce those documents in hard copy.
The benefits of an e-trial will vary from case to case, but indications from other courts are that the implementation of e-trials has reduced the length of hearings, and improved their efficiency and capacity to hear other matters. Once the profession has been trained on the new technology there may be scope for the parties to reduce their litigation costs by agreeing to conduct the matter as an e-trial.
It is important for developers, State and local Governments to ensure that they consider all options when they are involved in a dispute in the PEC, and how to manage that matter by taking advantage of the powers of the ADR Registrar where appropriate.
It is apparent that the PEC recognises that a "one size fits all" approach is not appropriate given the variety of disputes that it deals with, and in certain circumstances, a negotiated outcome achieved with the help of the ADR Registrar may provide a more efficient outcome, that is agreeable to all parties with cost savings.
Should a matter reach hearing, the implementation of e-trials would also assist in reduction of time and cost. Parties should consider be whether an e-trail is appropriate to the matter and is a viable way of managing expense during the course of litigation.
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1Matthew McDermott, 'Effective environmental dispute resolution in Queensland: Commentary and critiques from the Planning and Environment Court' (2013) 30 Environment and Planning Law Journal 150, 154.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.