20 NOVEMBER 2012
The Planning and Environment Court (P&E Court) now has the general discretion to award costs. This fundamental shift from the previous general default position that each party to an appeal bear their own costs was passed on 13 November 2012 and brings the P&E Court more in line with the costs regime in the Supreme and District Courts.
A non-exhaustive list of matters the P&E Court may have regard to when exercising its discretion in awarding costs has been incorporated into the Sustainable Planning Act (SPA), including “the relative success of the parties to the proceeding”, “the commercial interests of the parties to the proceeding” and whether the proceedings were commenced “without reasonable prospects of success”.
It is expected that the amendment will:
- remove the reluctance of applicants to challenge conditions due to the cost of litigating outweighing the benefit of a successful outcome;
- reduce the number of commercial competitors appealing decisions for the purpose of delaying developments, as there is now a real risk that they could be penalised by a costs order; and
- reduce the number of third party appeals being commenced on weak town planning grounds.
This is just one of the amendments to the SPA aimed at trying to reduce the ‘red tape’ for development applications. Other noteworthy changes are:
- the ability for the chief executive to nominate a single entity to be the assessing authority for a development approval, allowing for the efficient and cost-effective operation of a single State assessment and referral agency; and
- the introduction of an Alternative Dispute Resolution process in the P&E Court for minor disputes or routine procedural applications, providing a less formal and less expensive process for these types of disputes or applications.
You are a valued Kinneally Miley contact, for more information related to this Legal Update please contact us.
[contactsbox] [leftcolumn]Contact Partner: Francesca Petroccitto
Direct Telephone : 07 3210 5771
Mobile Telephone : 0402 293 644
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