In this update we briefly consider some recent Planning and Environment Court decisions regarding costs and the notification of new development approvals.
For a long time, the general rule in Planning and Environment Court (Court) proceedings has been that each party must bear their own costs. Whilst there have always been some exceptions to the general rule, the exceptions have only been applied in the rarest of circumstances. On 22 November 2012 a new costs regime commenced, which gives the Court broader discretion to make costs orders.
The Court has recently considered the new costs regime in a number of cases. The most significant decision to date is MC Property Investments Pty Ltd v Sunshine Coast Regional Council  QPEC 39.
This matter has a long history. In short, MC Property Investments Pty Ltd (MCP) obtained various development approvals over a long period, and proceeded to develop land in a way that was inconsistent with those approvals. The local government (Council) undertook various actions intended to bring about compliance with the approvals, including the commencement of prosecution and enforcement proceedings. In response, MCP sought a declaration that the development which Council alleged was unlawful was generally in accordance with the approvals.
The Court determined that the development in question was not generally in accordance with the relevant development approvals (see MC Property Investments Pty Ltd v Sunshine Coast Regional Council  QPEC 32) and the Council subsequently brought an application for indemnity costs against MCP.
There was no dispute that the new costs regime applied and Council sought costs on the basis that MCP’s application failed completely and had no prospect of success. It was also alleged that MCP would obtain a commercial benefit if the application was successful, due to savings on development application costs and the payment of significant infrastructure charges that would apply to the ‘new’ development.
The Court noted that it has much broader powers under the new costs regime, which moves toward a middle ground between the old general rule that each party must bear their own costs and the general rule in other civil proceedings that costs follow the event.
Whilst the Court identified that there may have been some commercial advantage to MCP if its application was successful, the Court suggested that the new costs regime is directed towards commercial competitor appeals, rather than commercial considerations more broadly, and declined to reach any final conclusion in respect of commercial advantage.
The Court determined that MCP completely failed in its application for a declaration, which had no prospect of success. The Court awarded costs in favour of Council on the standard basis.
In any Court proceeding it is now essential to ensure that your legal strategy includes a consideration of the circumstances in which costs might be awarded, and includes steps and actions to minimise the risk of any adverse costs order.
Notification of approvals
In the matter of Rockhampton Regional Council v GKI Resort Pty Ltd & Anor  QPEC 40 the Rockhampton Regional Council (Council) was tasked with giving written notice of a development approval to 6,493 submitters. The matter was complicated by the fact that the development application was declared to be for a project of State significance that required public notification of an environmental impact statement (EIS) under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act).
When giving notice of its decision to approve the development application, Council was required to give:
- the applicant a copy of the approval, including the name and address of each submitter; and
- within 5 business days of the first of certain events occurring, a copy of the approval to each submitter.
In this case, the IDAS process was modified so that the Chief Executive administering the SDPWO Act was responsible for receiving submissions during public notification of the EIS. Council remained the assessment manager for the application, and was responsible for giving notice of the approval to the 6,493 submitters. The submitters had not been given written notice of the approval at the time of the hearing.
It is customary for an assessment manager to give written notice of a decision in respect of a development application by post. However, in this case the Council sought orders that would permit substituted methods of giving notice to the submitters.
The evidence before the Court included:
- Council did not receive details of the submitters until after the relevant statutory time for giving the decision notice to the submitters had expired;
- postage costs were expected to exceed $80,000, which did not include other administration or staff costs; and
- a significant number of the submitters only provided an email address for contact.
In considering the matter, the Court hard regard to:
- putting aside the timing issue, the cost and impracticability of requiring notice to be given by post;
- the contact details provided by the submitters, which were primarily email addresses;
- an overriding obligation for the just and expeditions resolution of real issues in proceedings at a minimum of expense;
- the shifting trend towards the convenience of electronic communication; and
- whether alternate forms of notification were likely to bring the approval to the attention of the submitters.
The Court excused technical non-compliance with statutory requirements and made orders which permitted the Council to give written notice of the approval to the submitters by a combination of post (for those submitters that did not provide an email address), emailing a link to the approval, publication in a newspaper and publication on the front page of Council’s website.
Whilst local governments should remain diligent about the notification of decisions in respect of development applications, this matter demonstrates that in appropriate cases, reasonable and practical relief from strict compliance with statutory requirements is available from the Court.
We also suggest that local governments seek consent from any person making an electronic submission to receiving the decision notice by email as a part of their standard protocols for the receipt of electronic submissions to address any complications which may arise under the Electronic Transactions (Queensland) Act 2001 (Qld).