The Planning and Environment Court is a forum frequently called on, both in appeals and in its declaratory jurisdiction, to balance the competing interests of private applicants and the broader interests of the community or interested third parties.  Whilst recognising the important role played by individuals and public interest groups in the planning process, all too often substantial costs in such proceedings are borne by the private applicants and, for that matter, local governments.  Without having conducted an extensive survey of costs, in the authors’ experience such third party appeals and declaratory proceedings can cost applicants anything from $25,000 to $300,000 depending on the number and complexity of issues raised.  Given the extensive costs often involved in such proceedings, it is the authors’ opinion that more needs to be done to mitigate those costs.

The focus of this paper is to examine the current system of costs in the P&E Court, including recent case law developments, and identify alternatives available under the Uniform Civil Procedure Rules 1999, the Judicial Review Act 1991 in addition to exploring alternatives such as shifting the burden of proof.

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