We often see Court proceedings being conducted in the name of the development consultant, either as the Appellant or Co-Respondent, instead of the client. In our opinion, this isn’t a good situation for either the development consultant or the client because of the adverse consequences that might follow.
Situations in which the consultant is named as a party to Court proceedings invariably results from the consultant being named as the applicant in the original development application. Consequently, the resulting Appeal commences in the WC’s name because an Appeal must be commenced in the applicant’s name.
While good publicity for the consultant, there are several problems that can arise when the development consultant lodges an application in its name rather than the client’s name.
In addition to the public relations value, consultants usually see an advantage in lodging an application in their name so that they maintain both control and communication over the application process. And, more importantly, this also leaves the client dependent on the consultant, giving the consultant considerable leverage regarding fees and payments.
However, disadvantages can easily arise in the event of a breakdown of the consultant-client relationship. Especially when it reaches the point where the consultant wants to extricate itself from the application process. This includes situations such as the client refusing to pay Council fees or the consultant’s fees, or if they have unrealistic expectations of either the consultant or the assessment manager.
This can place the consultant in the difficult position of trying to distance itself from the client and their dealings with the assessment manager, referral agencies and other consultants, including lawyers, conveyancers and other professionals.
However, it’s also important to see things from the client’s perspective and understand that there are often negative situations in which they may find themselves. For example, a client may find themselves in a situation where the consultant goes off the rails and refuses to allow its name to be used in progressing the development application or Court proceedings.
Situations like this are further compounded if the development application is heading to an Appeal in the P&E Court. We’ve had situations in which the consultant wants no part of the Appeal proceedings (either an applicant Appeal or a Submitter Appeal) but is obliged to be named as a party because they’re named as the applicant for the development proposal. A similar scenario can arise where a Submission is lodged in the consultant’s name.
While ongoing concerns over potential adverse cost orders have mostly been eliminated in the Planning Act, there’s always the potential for a consultant to be ordered to pay an adverse costs order because the client has conducted Appeal proceedings frivolously. Despite a likely right of indemnity against the client for such a costs order, the better course of action is to do whatever possible to avoid such a situation arising in the first place.
Ian Neil
Director | Planning + Environment, Litigation
PHONE +61 7 3370 5100
