In pursuing or resisting a proceeding, parties must
carefully consider whether there are reasonable prospects of
It has now been over 12 months since the basis for awarding
costs in the Queensland Planning and Environment Court
(P&E Court) was fundamentally changed.
Historically each party to P&E Court litigation generally bore
its own costs, with costs orders only possible in narrow
While each costs application will be decided on its particular
facts, recent decisions of the P&E Court provide some guidance
as to the factors the P&E Court may take into consideration
when deciding a costs application. This is illustrated by the case
of Hydrox Nominees Pty Ltd v Noosa Shire Council (No.2)  QPEC
60, in which a Council was ordered to pay 85% of the
developer's costs of the appeal.
The costs provisions in the Sustainable Planning
For proceedings commenced since the amendments came into force
in November 2012, the costs of a proceeding, or part of a
proceeding, are in the discretion of the P&E Court. To that
end, section 457(2) of the Sustainable Planning Act 2009 sets out a
non-exhaustive list of matters to which the P&E Court may have
regard in making an order for costs.
The dispute in Hydrox
A developer appealed against the then Noosa Shire Council's
decision to refuse a development application to facilitate the
development of a Masters Home Improvement Centre and showroom on
land within the Noosa Shire Business Centre. The developer was
successful in the proceedings and sought its costs of the
The Council submitted that it acted reasonably in resisting the
appeal and ran an appeal which was "arguable and for a
legitimate planning issue of some public importance", being
the protection of the centre's hierarchy and the planning for
the Shire Business Centre.
How the P&E Court determined the question of costs
The P&E Court noted that the Council's submissions (if
accepted) may be relevant to an application, but are not
necessarily determinative matters.
In exercising its discretion the P&E Court took into account
a number of other factors, including:
not only had the developer been successful in obtaining the
approval which it sought, it had also been successful on all but
one of the areas which had been in dispute;
both the economists for the Council and the developer agreed
that the impact of the proposal would be a net benefit (although
the economists had different views on the level of that
the Council's economist's view was that the impact on
established traders was not of such an order as to justify
the Council had received legal advice that that the prospects
in the matter were not strong; and
the Council had received opinions from Senior and Junior
Counsel that that the "Council had reasonable but not good
prospects that the Court will uphold its decision and refuse the
Ultimately, the P&E Court ordered that the Council pay 85%
of the developer's costs of the appeal.
Despite the order for costs against the Council, the P&E
Court noted that there was no evidence to suggest that the Council
had acted improperly in deciding to proceed to hearing. There was
no suggestion that the Council's case was frivolous or
Parties should remember that the discretion of the P&E Court
to award costs is an open and unfettered one.
Matters which may limit a party's exposure to a costs order
prosecuting proceedings with regard to their realistic
prospects of success;
pursuing proceedings with advice from appropriate
not pursuing issues which are not sustainable in fact
In pursuing or resisting a proceeding, parties must carefully
consider whether there are reasonable prospects of success.
A party is not obliged to abandon an arguable but weak case, but
arguments should be based on sound planning grounds and be
supported by suitably qualified experts.
Finally, risks associated with costs orders may be minimised by
engaging in meaningful alternative dispute resolution process in an
early stage in the proceedings. Where the parties to a proceeding
participate in early dispute resolution processes, and this
resolves the proceeding, section 457(4) of Sustainable Planning Act
may operate so that the parties will each bear its own costs.
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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