Section 59 of the Planning and Environment Court Act 2016 (“PECA”) sets out that the usual course in a Planning and Environment Court proceeding is that each party must bear their owns costs for the proceeding.
There are exceptions to this however, set out in sections 60 and 61 of PECA.
The exceptions provided by section 60 include:
(a) The P&E Court considers the proceeding was started or conducted primarily for an
improper purpose, including, for example, to delay or obstruct;
Example— A party (the first party) with similar commercial interests to another party started a proceeding. The P&E Court considers the proceeding was started primarily to advance the first party’s commercial interests by delaying or obstructing the other party’s development approval from taking effect.
(b) The P&E Court considers the proceeding to have been frivolous or vexatious;
Example— The P&E Court considers a proceeding was started or conducted without
reasonable prospects of success.
(c) A party has not been given reasonable notice of intention to apply for an adjournment of the proceeding;
(d) A party is required to apply for an adjournment because of the conduct of another party;
(e) Without limiting paragraph (d), a party has introduced, or sought to introduce, new material;
(f) A party has defaulted in the P&E Court’s procedural requirements;
(g) The P&E Court considers an applicant for a development application or change application did not give all the information reasonably required to assess the development application or change application;
(h) the P&E Court considers an assessment manager, referral agency or local government should have taken an active part in a proceeding and did not do so;
(i) an applicant, submitter, assessment manager, referral agency or local government
does not properly discharge its responsibilities in the proceeding.
Two recent decisions of the Planning and Environment Court consider section 60 of PECA, and in particular section 60(b), as to whether proceedings have been frivolous or vexatious in that the proceedings were bound to fail. These decisions are SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors (No. 2) [2022] QPEC 51 and Danseur Pty Ltd v Cairns Regional Council & Ors [2022] QPEC 54.
In the case of SDA Property Nominees, his Honour Judge Williamson KC found that the conduct of two submitter parties, who did not have legal representation, fell well short of what is expected of litigants in the Planning and Environment Court and that their input in the appeal resulted in an unnecessary and avoidable waste of public and private resources. His Honour allowed the application for costs and ordered the submitter parties to pay certain costs of the developer and the Council.
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This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.