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Planning and Environment Paper: The Sustainable Planning and Other Legislation Amendment Act (No. 2) 2012: The costs of litigating in the Planning and Environment Court - 22 Nov 2012

In Planning Reform in Queensland: The first instalment, published on 20 September 2012, we touched on proposed reforms to the Planning and Environment Court’s power to award costs, noting that the Sustainable Planning and Other Legislation Amendment Bill 2012, as it then stood, proposed to alter the costs rules so that costs would “follow the event”. We went on to say that:

“… the altered cost powers of the Court will undoubtedly make it riskier for developers to engage in litigation in the Court. The prospect of paying three sets of costs, rather than one, increases the financial risks and will cause parties to carefully evaluate the strength of their case before commencing proceedings, or taking them past the ADR steps. The new cost powers will undoubtedly change the way planning cases are run, and will put increased emphasis on the effective use of ADR processes.”

The clauses of the Bill relating to cost powers were amended in committee by the Queensland Parliament, and the Sustainable Planning and Other Legislation Amendment Act (No. 2) 2012 (SPOLAA) has been passed with some significant changes, in particular removal of the provision that costs “follow the event” unless the Court orders otherwise. The SPOLAA was assented to on 22 November 2012 and the new costs powers came into effect on that date. The changes to the Bill were the result of a substantial body of submissions to the committee that the costs rules as proposed unduly restricted the Court’s discretion.

Partner David Nicholls shares his insights into the changes that have been made, discussing cases involving conflict with the planning scheme, and applicable case law.

Please click the Download PDF button to download this paper.