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Case Studies

Council avoids costs order despite having granted invalid development consent - February 2010

In 2008-2009 Mark Cottom acted for a council client in Land and Environment Court judicial review proceedings.  These were commenced by a local business, without prior notice to the council, seeking orders from the Court declaring a development consent granted in relation to an adjoining property invalid.  Mark reviewed the council's file and advised as soon as the other party's case was put in writing that a submitting appearance should be filed.  That is, the council should take no active part in the proceedings but rather leave it to the holders of the relevant development consent to fight the proceedings if they wished to do so.  That is what occurred, and only a small component of the development approved by the council was set aside by the Court. 

By separate application heard in February 2010 the other party then applied for costs.  The Court found that in circumstances where: the other party had given no notice of the intention to commence proceedings (thereby denying the council any opportunity to rectify the situation outside of court); council had filed an early submitting appearance (and therefore not added undue cost to the proceedings); and the other party had achieved a somewhat "hollow victory" in terms of the relief it sought, each party should pay its own costs of the proceedings.  The other party was however required to pay the council's costs of the costs application, as the council had engaged actively in that separate component of the proceedings and been wholly successful.  This all resulted in significant cost being saved for the council, not just in the form of costs between solicitor and client but also in terms of costs between parties.