In brief
A recent Queensland Planning and Environment Court decision sheds light on the application of the new rules for awarding costs following a trial. Special Counsel Rosanne Meurling and Lawyer David Thorpe consider the recent judgment and provide an update regarding the implications for parties to proceedings.
Background
As discussed in our Client Update: One year on ... the new costs rules in the Queensland Planning and Environment Court, the rules for awarding costs in the Queensland Planning and Environment Court (the P&E Court) were fundamentally changed in November 2012.
The Sustainable Planning Act 2009 (Qld) had, until November 2012, provided for each party to a proceeding in the P&E Court to pay its own costs, except in limited circumstances. That provision was changed as part of a suite of reforms to give the P&E Court a general discretion to award costs against a party to a proceeding.
In the recent decision of Cox v Brisbane City Council, the P&E Court confirmed that the discretion to award costs is considered to be an open one that is expressed in general terms, but is to be exercised having regard to the relevant circumstances.
Cox v Brisbane City Council
The case of Cox v Brisbane City Council concerned an application by the co-respondent developer, Childhood Cancer Support Inc (a not-for-profit organisation), for its costs following a successful defence in resisting an appeal by numerous third-party submitter appellants against a decision to approve a multi-unit development for special needs accommodation on a residential lot. The application for costs was made against all bar one of the appellants, being the adjoining neighbour. The council did not seek to recover its costs.
In ordering that each party bear their own costs, Judge Rackemann said that the P&E Court's discretion to award costs 'is not to be approached either on the basis that there is a presumption that costs follow the event ... or on the basis that there is a qualified protection against an adverse costs order'. Rather, the P&E Court's discretion to award costs must be exercised 'judicially and having regard to the relevant circumstances'.
In exercising its discretion not to impose an adverse costs order on the submitter appellants, the P&E Court took into account:
- the relative success of the parties as, although the developer was successful, the council's original decision was altered by the court imposing additional conditions on the approval to protect amenity;
- the bona fide matters of town planning relied upon by the submitter appellants in support of their opposition to the proposed development;
- the fact that some of the submitter appellants resided in the area, and their understandable concern for the protection of the character and amenity of the area; and
- the reasonable conduct of the submitter appellants, both leading up to, and during, the proceeding, including obtaining appropriate professional advice from town planning consultants, solicitors and a barrister, raising issues of relevance and prosecuting the appeal with reasonable expedition.
The commercial interests of the parties in a proceeding are a matter that the P&E Court may have regard to in deciding an application for costs. One of the submitter appellants had an interest in eight units and townhouses that adjoined the proposed development, and was concerned about the impact of the development on the privacy and amenity of the residents of those properties. His Honour said that the weight to be placed upon the commercial interests of the parties, in the exercise of the discretion to award costs, will vary according to the circumstances and that, in this case, it was not of great weight.
The fact that the developer is a charity was not considered by the P&E Court to have a substantial impact on the exercise of the court's discretion.
How does it affect you?
- The new costs regime is a serious matter to be considered prior to commencing proceedings and during those proceedings.
- The new costs regime identifies a number of matters that the P&E Court may have regard to when deciding a costs application. The case provides a practical examination of these matters, including an examination of the interests of the parties, a consideration of the factors that will be seen as amounting to reasonable conduct, the importance of engaging competent consultants and legal representatives, and the importance of a case having reasonable prospects of success.
- The case shows that, while the P&E Court has a broad discretion to make an award of costs, parties who raise genuine issues in the public interest, demonstrate a genuine concern about a proposed development, are supported by experienced professional advice, and otherwise conduct themselves reasonably, are unlikely to be ordered to pay the costs of other parties, even if they are unsuccessful.
- The recent decisions about the new costs regime point to the need for parties to properly understand their legal rights and obligations before commencing or participating in proceedings before the P&E Court.