The cost of litigation is a barbed wire fence that stops many people using our court system. This fence becomes a towering barrier when people are trying to protect not their private interests, but something valuable to the community; say, an old building with heritage values.
It’s true that when people in the community act to protect something in the public interest, they can sometimes find lawyers willing to act for free or greatly reduced fees. They then have a set of wire cutters to cut through the costs barrier.
But in most courts in Australia if you lose a case you will be ordered to pay the legal costs of the other parties. This rule, that “costs follow the event”, is truly frightening if you are thinking of going to court to protect the public interest for something like a heritage building or a piece of bushland. Your opponent is likely to be a large corporation with deep pockets and teams of lawyers and expert witnesses. Their legal costs can stretch into millions of dollars.
To improve access to the courts, particularly to challenge government decisions that affect the community, certain courts have been created in which each party bears its own costs whatever the outcome of the case. This approach greatly improves access to the court system and, thereby, promotes better decision-making.
One of these courts is the Planning and Environment Court in Queensland.
Changing laws in Queensland
The change would mean a losing party to an appeal in the Planning and Environment Court pays the costs of the winning party.
Why does this matter? For over 20 years, the rule in this court has been that each party pays it own costs, subject to some limited exceptions.
Imagine you live in a part of the country surrounded by farms, national parks and reserves. A large community of vulnerable animals, including koalas, live in this area. A developer snaps up a number of properties and decides to clear the land, rezoning it as high density housing with approval from the government.
What can you do? You decide to get together with others in your local community to voice your concerns, which the developer ignores. What this legislation does is let your community group bring a case against the development company without wondering if you’ll go bankrupt by the end of it.
Who will this affect?
Changing the “own costs” rule has big implications for individuals and organisations who have limited funding sources.
It also compounds the damage done when the state recently stopped funding the Environmental Defenders Office, a community legal centre that previously provided free advice on planning and environmental issues to the community. The EDO has suspended its free community advice service.
The EDO and a number of community organisations such as the Wildlife Preservation Society of Australia and Mackay Conservation Group have made submissions against the change to the costs rule, arguing it will tip the scales in favour of developers and large councils who have deep enough pockets to take on the risk of going to trial.
Some of these submissions highlight cases they were personally involved in the Planning and Environment Court. There have also been many other decisions brought and decided under the own costs rules that may never have made it to court if the party feared crippling court costs.
Why change it now?
The stated policy objective for the Bill is to improve Queensland’s planning and development system by reducing the number of actions brought to court that are based on “weak planning grounds”.
Under the existing costs rule, the Planning and Environment Court has the power to award costs in the case of “vexatious” or “frivolous” actions.
The proposed change will not stop appeals on weak planning grounds by commercial competitors seeking to discourage or delay new development: they can afford to pay the costs. But it will create a new barrier to the few individuals and community groups who challenge a development proposal even on strong planning grounds.
Only a very small fraction of development applications end up going to court even under the current costs rule. Not only this, but the Planning and Environment Court is well known for excellent early resolution management with 90% of matters resolved before even going to trial.
Everyone should have access to the law and the courts, regardless of their financial position. The proposed changes to costs awards removes these safeguards for individuals and communities who wish to protest a proposed development, and creates a barrier to accessing legal support.
Planning decisions affect everyone, and everyone should be able to be a part of that decision-making process.