Medium Neutral Citation: Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors (No 2) [2020] NSWLEC 49

Hearing dates: 2 April 2020

Date of orders: 15 May 2020

Decision date: 15 May 2020

Jurisdiction: Class 4

Before: Duggan J

Decision: See paragraphs 52 and 53

Catchwords: COSTS – applicant successful in principal judgment – respondents filed submitting appearances in principal hearing – effect of submitting appearances – submitting appearance is only one circumstance and is not alone determinative – each respondent contributed to making of errors – no disentitling conduct from applicant – offers to settle proceedings – question of reasonableness of not resolving the proceedings – general rule that costs follow the event

Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited: Cutcliffe v Lithgow City Council (2006) 147 LGERA 330
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645
Lou v IAG Limited t/as NRMA Insurance [2019] NSWCA 319
Mahenthirarasa v State Rail Authority (NSW) (No 2) (2008) 72 NSWLR 273
Moseley v AB (No 2) [2017] NSWSC 1812
Oshlack v Richmond River Council (1998) 193 CLR 72
Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86
Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors [2019] NSWLEC 194
Rossi v Living Choice Australia Ltd [2015] NSWCA 244
Seller v Jones [2014] NSWCA 19

Category: Costs

Parties: Reulie Land Co Pty Limited (Applicant)
Lee Environmental Planning Pty Limited (First Respondent)
Lasovase Pty Limited (Second Respondent)
Wingecarribee Shire Council (Third Respondent)Representation:Counsel:
A Hemmings (Applicant)
P Tomasetti SC (First and Second Respondents)
J Smith (Third Respondent)

Solicitors:
Beatty Legal (Applicant)
Holding Redlich (First and Second Respondents)
Shaw Reynolds Lawyers (Third Respondent)
File Number(s): 2019/48083

Publication restriction: No

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Judgment

Background facts

1. These proceedings relate to a challenge by Reulie Land Co Pty Limited (the Applicant) to the validity of a development consent for staged development granted by the Third Respondent, Wingecarribee Shire Council (the Council), to the First Respondent, Lee Environmental Planning Pty Limited (Lee), with respect to a building envelope for a future dwelling house on the Subject Property owned by the Second Respondent (Lasovase).
2. I determined those proceedings in the principal judgment Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors [2019] NSWLEC 194 (Reulie No 1). The facts and findings I made in connection with the substantive proceedings are relied upon but are not repeated here. Except as otherwise defined here, the defined terms as referred to in the Reulie No 1 are also used here.
3. The matter is now before me to determine the issue of costs of the proceedings. Of particular importance to this costs application is that in Reulie No 1 each of the Respondents filed submitting appearances “save as to costs”.

Nature of orders sought

4. The Applicant, as it was successful in Reulie No 1, seeks an order that the Respondents pay its costs of the proceedings and this hearing on costs.
5. Lee and Lasovase seek an order that the Council pay the whole of the Applicant’s costs of the proceedings. They also seek an order that the Applicant pay their costs of this hearing on costs.
6. The Council seeks an order that the costs be paid by Lee and Lasovase in the following proportions:

1. The Council to pay 50%, and Lee and Lasovase to pay 50% of the Applicant’s costs as agreed or assessed up to 18 June 2019; and
2. Lee and Lasovase are to pay the whole of the Applicant’s costs from 24 June 2019 to 17 December 2019.

7. The Council also sought an order that Lee and Lasovase pay the Applicant’s costs and the Council’s costs (on an indemnity basis as to Council) of the hearing on costs.
8. The Council accepted that the Applicant was entitled to its costs of the proceedings, and that, to an extent, it was liable for some of those costs. It only wished to make submissions on whether the costs as between the Respondents should be apportioned, and if so, to what extent. Lee and Lasovase generally agreed that the Applicant was entitled to its costs of the proceedings, but only if they were paid to the full extent by the Council.

Evidence

9. The parties provided a number of affidavits and documents that they relied upon in this application. Particular emphasis was placed upon various offers relating to various stages of the proceedings. That evidence is generally:

During the proceedings, prior to principal hearing

Date	Nature of event
8 April 2019	A without prejudice meeting with the Applicant and representatives of each of the Respondents in an attempt to facilitate settlement of the proceedings by relocation of the building envelope.
21 March 2019, 12 April 2019, 3 May 2019, 24 May 2019	The Applicant adjourned the proceedings on four occasions in an attempt to facilitate without prejudice negotiations between the parties.
26 April 2019 (Applicant’s first offer)	The Applicant made an offer that it was prepared to discontinue the proceedings on the basis that:(a) Lee and Lasovase, in accordance with s 4.63 of the EP&A Act and Regulations, voluntarily surrender their development consent within 7 days;(b) Council receive and give effect to that surrender; and(c) The Respondents, between them, pay the Applicant the sum of $52,250.
1 May 2019	Lee and Lasovase responded to the offer indicating that Lee and Lasovase were prepared to accept the first two conditions of the offer, but only on the basis that there be no order for costs against Lee and Lasovase.
13 June 2019	Lee and Lasovase sent the Applicant a letter to confirm that they remained prepared to resolve the dispute in accordance with conditions 1 and 2 of the 26 April 2019 letter, with no order for costs.
14 June	The Applicant made preparations to accept the offer in the 13 June 2019 letter. However, Lee and Lasovase withdrew the offer later that day, before the Applicant accepted in writing.
19 June 2019 (Applicant’s second offer)	The Applicant made an offer that the proceedings be discontinued on the basis that:(a) Lee and Lasovase, in accordance with s 4.63 of the EP&A Act and Regulations, voluntarily surrender the development consent;(b) The Applicant receives evidence that the surrender of the consent has been accepted by the Council; and(c) There be no order as to costs in the proceedings.This offer was open until 24 June 2019 and was not accepted by Lee and Lasovase.
14 October 2019 (Applicant’s third offer)	The Applicant renewed the 19 June 2019 offer in the same terms.This offer was open until 21 October 2019 and was not accepted by Lee and Lasovase.

Prior to costs hearing

Date	Nature of offer
7 January 2020	The Applicant made an offer to settle the question of costs of the proceedings on the basis that the Respondents pay the Applicant $106,250, approximately 85% of the Applicant’s costs. The manner in which the quantum was to be apportioned between the Respondents was a matter for agreement between them.The Respondents did not accept the offer.
28 February 2020 (First Calderbank offer)	The Council made an offer styled as a “Calderbank Offer” seeking to resolve the issue of outstanding costs on the following basis:(a) Council to pay $25,000 to the Applicant in full and final settlement of the costs of the proceedings; and(b) The parties shall enter into a deed of settlement and release whereby:(i) Council agrees to make the payment as stated above;(ii) The Applicant agrees to apply to discontinue the proceedings against Council;(iii) The Applicant and Council agree to pay their own costs with respect to the proceedings;(iv) No admission of liability is made; and(v) The parties agree to release each other from all future claims, demands and actions in relation to this matter.The Applicant did not respond to the offer.
16 March 2020 (Second Calderbank offer)	The Council sent a further Calderbank offer on the following basis:(a) Council to pay 50% of the Applicant’s costs as assessed or agreed up to 18 June 2019;(b) Lee and Lasovase to pay 50% of the Applicant’s costs as assessed or agreed up to 18 June 2019;(c) Council to pay 20% of the Applicant’s costs as assessed or agreed from 19 June 2019 to 17 December 2019;(d) Lee and Lasovase to pay 80% of the Applicant’s costs as assessed or agreed from 19 June 2019 to 17 December 2019; and(e) Each party bear its own costs from 18 December 2019.Lee and Lasovase rejected the offer on 20 March 2020.

10. In addition, evidence was adduced by Mr Lee relating to the circumstances surrounding the amendment of the Envelope DA referred to at [12] of Reulie No 1. The evidence provided included the sketch plan that was not available in Reulie No 1. That sketch plan indicated, inter alia, that the envelope to which the Council officer, Mr Gounder, referred in his email at [41] of Reulie No 1 identified a location that did in fact move the envelope to a location in front of the Applicant’s land. This evidence was contrary to the inference I drew on the basis of the material before me at the hearing at [41]-[43].
11. Lee and Lasovase wished to rely on this material to support a submission that their actions did not contribute to the errors made by the Council in the decision making process and identified in Reulie No 1. The Applicant and the Council indicated that such evidence could not now be relied upon as findings have already been made on the issue of the movement of the envelope, and that this evidence should not be considered in the exercise of the costs discretion.
12. The findings that were made in Reulie No 1 were made on the evidence that was available at that time and, where necessary, the drawing of inferences was based on that evidence. In this application for costs a party is entitled to adduce evidence that is relevant to the exercise of the discretion. In this case there is a dispute between the Respondents as to which Respondent was responsible for the error that gave rise to the proceedings. The material now adduced by Mr Lee is relevant to that issue and I will consider it in the context of this application for costs.

Applicant’s submissions on costs the of proceedings

13. The Applicant, in accordance with the general discretion as to costs provided for in s 98 of the Civil Procedure Act 2005 (CP Act) and the general rule as to costs contained in Uniform Civil Procedure Rules 2005 (UCPR) rule 42.1 that:

Subject to this Part, if the court makes any order as to costs, the court is to order that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

sought an order in accordance with the general rule that the Respondents pay its costs of the proceedings.

14. The Applicant contended that the general rule should apply as there were no circumstances demonstrated that would indicate that some other order should be made as to the whole or part of its costs. In particular:

1. By the decision in Reulie No 1 the Applicant was successful in the event; and
2. There was no evidence or compelling submission that would permit a finding that the Applicant acted unreasonably prior to or during the conduct of the proceedings to justify an order depriving it of an order for costs.
3. The fact that each Respondent filed a submitting appearance, save as to costs, would not alter the Applicant’s entitlement to the order in accordance with the general rule as:

1. There is no prima facie rule that a submitting party will never be ordered to pay costs: Lou v IAG Limited t/as NRMA Insurance [2019] NSWCA 319 at [43] per Payne JA (Gleeson JA agreeing). There is no rule or legislative provision dealing with the costs consequences of filing a submitting appearance. The only applicable rule relating to costs is the general rule in UCPR 42.1;
2. Where a submitting appearance has been filed, a principled exercise of the s 98 CP Act costs discretion having regard to all of the circumstances of the case is required: see Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; Seller v Jones [2014] NSWCA 19; Lou v IAG. Whilst such circumstances may include the fact of the filing of a submitting appearance, such a fact does not dictate an outcome; and
3. As such, a principled exercise of the s 98 costs discretion would lead to a finding that in the circumstances such of this case, where all of the Respondents filed a submitting appearance, the submission usually made that no order for costs should be made against a submitting party has less applicability: Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86.

16. Further, as the decision in Reulie No 1 discloses, each of the Respondents caused or contributed to the errors the subject of the proceedings, which is a relevant consideration in the exercise of the s 98 costs discretion.
17. Whilst the Applicant’s primary submission was that the general rule would apply, provided an order was made for the payment of its costs of the proceedings, whether an order is made to apportion the costs as between the Respondents was a matter for the Court.

First and Second Respondents’ submissions on costs of the proceedings

18. Lee and Lasovase were jointly represented by the same legal representatives. Submissions as to the general costs principles were made on behalf of each of these Respondents and further specific submissions were made as to the circumstances relating to each individual Respondent.
19. As a matter of general principle it was submitted that there was a prima facie presumption that a party that files a submitting appearance is protected against an order for costs: Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 at [38]; Cutcliffe v Lithgow City Council (2006) 147 LGERA 330 at [33] and [36].
20. A party that files a submitting appearance should only have that prima facie position altered where the party has:

1. caused or contributed to the error to which the proceedings related: Platford at [23]; and/or
2. acted unreasonably in not resolving the dispute rather than requiring the proceedings to have to be taken to achieve the result sought.

21. Lee and Lasovase both submit that they do not fall within either of the factors that have been identified as being relevant to the making of a costs order against a party that has entered a submitting appearance.
22. The Court, in its s 98 costs discretion, is guided by UCPR 42.1 which permits the Court to make a costs order otherwise than in favour of a successful party. For the following reasons it was submitted that no costs order should be made against either Lee or Lasovase, either jointly and severally or individually.
23. With respect to Lee it was submitted that:

1. Lee was never a necessary party to the proceedings. Lee was not entitled to act on development consent. Its options were to seek an order that the proceedings be dismissed against it (a costly procedure), or file a submitting appearance, and it chose the latter. By filing a submitting appearance, the Applicant could make its application unopposed;
2. Lee relied upon the Council to correctly assess and notify the development application. Lee provided all required information to Mr Gounder; applied to amend the development application as suggested by Mr Gounder; and provided further information in good faith to Mr Gounder when requested;
3. Nothing Lee did, or by omission, did not do, caused or contributed to the events that led to the declaration and order being made;
4. Lee had no knowledge or control over the matters about which the Applicant complained;
5. Lee acted reasonably in entering a submitting appearance;
6. Lee was not in a lawful position to act on the consent or to surrender it;
7. Lee could not in its own right agree to any demand by the Applicant to move the envelope back to its original position; and
8. Lee was not asked to participate in, and did not take part in, any settlement discussions
9. With respect to Lasovase it was submitted that:

1. Lasovase complied with all Council requests;
2. Lasovase made the development application in good faith. Nothing Lasovase did, or by omission, did not do, caused or contributed to the events that led to the declaration and order being made;
3. The Applicant refused to delay commencement of the proceedings until Lasovase could consider the matter;
4. Lasovase had no knowledge or control over the matters about which the Applicant complained;
5. Lasovase was not obliged to make a further development application to move the envelope to the position the Applicant wanted it, a position which the Council had indicated contravened the principles set out in the Rural Lands DCP;
6. It was not unreasonable to refuse to surrender the development consent; until declared invalid, the consent was valid. The Applicant had also demanded a substantial payment towards the Applicant’s costs as a condition of settlement, contrary to the prima facie protection offered in the submitting appearance; and
7. Though not obliged to, Lasovase entered settlement discussions; it should not be prejudiced for showing a willingness to participate in such endeavours.
8. It was submitted that the Council was the party that should pay all of the Applicant’s costs as:

1. The Council’s conduct caused the administrative decision-making to miscarry, resulting in the proceedings. It was not reasonable for the Council to enter a submitting appearance given the factual nature of the claim for declaratory relief related to Mr Gounder’s misleading advice to the Applicant, and the Council’s own internal decision-making and public notifications process. As such, the Council did not take steps to assist the Court, which it was duty bound to do;
2. The Council still has not explained why it did not produce the email to Mr Lee with the photo showing the blue envelope. The Court implied that Mr Gounder had not appreciated that the amended development application had moved the envelope and therefore failed to assess the envelope in its changed position. However, given that Mr Gounder’s blue rectangle clearly was moved, Mr Lee could only observe in writing that Mr Gounder had moved the envelope as per the sketch plan, just not to the preferred location further up the hill;
3. The Applicant’s arguments as to why the development consent was invalid, which the Court accepted, included numerous allegations of error in Mr Gounder’s conduct. The errors leading to the declaration and order were those of Mr Gounder’s as the Council’s delegate. His actions were:

1. As alleged by the Applicant, speaking to Mr Wilder in October 2018 and misleading him;
2. Moving the envelope (the blue rectangle) west;
3. Deciding not to re-notify the amended application; and
4. Approving the amended development application under delegation.
5. In judicial review proceedings, a Council cannot necessarily make itself immune from a costs order against it by filing a submitting appearance: Cutcliffe; Platford; Rossi v Living Choice Australia Ltd [2015] NSWCA 244. A fortiori, it cannot shift the ultimate costs burden onto other Respondents who were not responsible for the process miscarrying. Entering a submitting appearance does establish a prima facie immunity against a costs order, but the circumstances of the case must be considered in the Court’s exercise of discretion as to costs. The standard of conduct expected of the Council is similar to Mahenthirarasa v State Rail Authority (NSW) (No 2) (2008) 72 NSWLR 273 at [21] where Basten JA stated:

… It was inappropriate for the State Rail Authority as a statutory corporation to stand by and in effect require the appellant to persuade the Court of the correctness of his position.

26. The general rule in r 42.1 and the relevant case law principles which guide the Court’s s 98 costs discretion apply to litigation where there is “a winner and a loser”. However, the principles do not deal with the case at hand, namely, a claim for declaratory relief by a person alleging invalidity arising from the exercise of power by a Council where the Council has chosen not to assist the Court in any way, does not answer a Notice to Produce fully, and where it enters a submitting appearance under the rules of practice. Further, in a claim of declaratory relief, relief will not usually be granted absent a true contradictor.

Council’s submissions on costs of the proceedings

27. The Council accepted that it was liable for a proportion of the Applicant’s costs. It opposed the making of an order in accordance with the general rule and sought orders making specific apportionment of the costs liability for the following reasons:

1. Council actively sought to resolve the proceedings at an early stage by meeting with all the parties on a without prejudice basis prior to the proceedings and providing an alternate pathway to successfully gain approval for the building envelope;
2. Council filed a submitting appearance at the earliest opportunity in the proceedings;
3. Council did not unnecessarily increase the Applicant’s costs or otherwise take an active part in the proceedings. Council did not file any documents to which the Applicant had to respond; and
4. The Applicant incurred costs in running an argument in which it was ultimately unsuccessful (that the amended DA required re-notification as a fresh DA);
5. Lee and Lasovase should pay 50% of Applicant’s costs up to 24 June 2019 as they had contributed to the error made by the Council, as was found in Reulie No 1 at [30], [42], [53], [54].
6. As to the costs after 24 June 2019, the Council contends that Lee and Lasovase should pay 100% of the Applicant’s costs to the date of judgment due to their unreasonable conduct in rejecting an offer to resolve the proceedings on terms that the consent be surrendered and there be no order as to costs. In particular, the rejection of the offer made by the Applicant on 19 June 2019 was unreasonable as it was identical to an offer made (and later withdrawn) by Lee and Lasovase on 1 May 2019. The failure to accept the offer forced the continuation of the proceedings and the costs incurred by the Applicant, including this subsequent hearing on costs.

Determination of the costs application

Effect of submitting appearances

29. The broad discretion to order costs is conferred by s 98 of the CP Act. In terms, that discretion is said to be subject to the Rules of Court and to the CP Act and any other Act. The only relevant provision of the Rules of Court (or other Act) dealing with costs is that contained in UCPR 42.1. Whilst provision is made in UCPR 16.1 for the filing of a submitting appearance, there is no express provision in either the CP Act or the UCPR that operates to protect, in all circumstances, a party from a costs order where a submitting appearance has been entered. There is no express barrier to the costs discretion being exercised in a manner that would include an order that a submitting party be ordered to pay costs. If it was intended that a submitting appearance would operate as an absolute exception to the “general rule” as formulated in UCPR 42.1 it would have made such provision in express terms. Therefore, it would be unreasonable for any party to rely on the filing of a submitting appearance alone as an absolute barrier to a costs liability.
30. To the extent that it may be said to have been established a prima facie position of protection or guidelines have been established that indicate protection from costs where a submitting appearance has been entered, such statements must be considered in the context of the exercise of the discretion and applicable rules that operate in connection with the exercise of the discretion. Whilst the starting point may be that a submitting appearance may provide some protection, the extent of the costs protection will always be subject to the overarching principle that underlies UCPR 42.1 and the circumstances of each case.
31. The foundation for the general rule in UCPR 42.1 is that as stated in Moseley v AB (No 2) [2017] NSWSC 1812 at [69] where the observations of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] were cited with approval:

[67] The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

32. That rule requires a consideration as to whether “…the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.” This rule mandates a consideration of whether, in the exercise of the discretion, there is some circumstance that arises in the particular case that would alter the application of that general rule. Whether a submitting appearance has been entered is a relevant circumstance to be considered and weighed in the exercise of the discretion, but that fact alone cannot dictate the outcome of the consideration.
33. Some of the authorities to which I have been taken were determined at a time prior to the operation of the CP Act and the UCPR and must, to that extent, be treated with some caution (see for example: Develtor at [38]; Cutcliffe at [33] and [36]). The more recent decisions made in consideration of the CP Act and UCPR make it plain that the filing of a submitting appearance, whilst a relevant consideration, is not determinative of a costs application. In particular, the two factors that have been the focus of attention in this case, namely: the extent to which the submitting party contributed to the error; and the reasonableness in not resolving the proceedings but submitting to them; have been identified as relevant considerations.
34. The particular circumstances of this case also raise for consideration the fact that all of the Respondents entered submitting appearances, leaving the Applicant to establish its entitlement to declarations and orders in proceedings before the Court. Such a circumstance raises for consideration in the exercise of the discretion issues of fairness to the successful party and the nature of the proceedings the subject of this application. As was observed by Preston CJ in Platford at [20]-[21] (which I agree with and respectfully adopt):

20   First, the ordinary rule that no order for costs should be made against a submitting party has less applicability in judicial review proceedings where both respondents, the consent authority which granted the development consent and the beneficiary of the development consent, make submitting appearances. Application of the ordinary rule would result in the successful applicant not being compensated for the costs of the proceedings.

21   Secondly, I do not consider it is appropriate in the circumstances of this case to apply the general guideline suggested in para (b) of Cutcliffe. That guideline is based on the assumption that “the cause of the invalidity is an error or attributable to the consent authority and not to the beneficiary.” This assumption needs to be understood in the context in which the general guideline was suggested, being judicial review of the exercise of the power of a consent authority under the EPA Act (such as the determination of a development application by the grant of development consent). Necessarily, the judicial review proceedings will only be successful if the applicant establishes that there was invalidating error in the exercise of the power by the consent authority. Hence, the mere fact that the cause of the invalidity is an error of the consent authority is not, of itself, a sufficient reason to order costs against the consent authority. This is the point made by Basten JA in Rossi v Living Choice Australia Ltd at [73].

35. I consider that the Applicant has not acted in a manner that would disentitle it to costs. The conduct of the Applicant post development consent does not in any way operate to indicate that it would not be entitled to a costs order. The making of offers and the substance of the offers including the foregoing of costs was reasonable in the circumstances. The Applicant, absent agreement, had no alternative but to continue with the proceedings.
36. Further, after the Applicant became aware of the grant of the impugned development consent, it commenced communicating with the parties that became the Respondents in these proceedings with a view to attempting to resolve the matter without recourse to litigation and giving notice of its intention to commence proceedings in the event the matter could not be resolved. The proceedings were commenced quite quickly after correspondence began. The proceedings were required to be commenced within three months of the grant of the Development Consent else the Applicant may be barred from bringing its claims. In those circumstances, I do not consider that timing of the commencement of the proceedings reflects as unreasonable conduct on the part of the Applicant.
37. It is then necessary to determine whether there are any circumstances as they relate to the Respondents that would indicate that an order other than one consistent with the general rule should be made.
38. As the Council appears to accept, at least in part, the errors that gave rise to the making of the declaration and order in Reulie No 1 were in part caused by the Council’s delegate who gave advice to the Applicant and made decisions in connection with the grant of development consent.
39. Whilst Lee and Lasovase did rely upon the Council to perform its functions lawfully and that some of the decisions made were wholly in the control of the Council I do not accept that Lee and Lasovase did not contribute to the making of the errors by the Council. The Council was making the decision based upon the information provided in the development application, for which information Lee and Lasovase were solely responsible. To the extent that the Council failed to have regard to the impact on the Applicant’s land of the amended application, that was due in part to the failure of Lee and Lasovase to submit to the Council material that assessed, at all, the impact of the change of the envelope location on private land. To that extent, Lee and Lasovase contributed to the Council’s error. Whilst Lee and Lasovase have sought to distinguish their various roles as between themselves, with respect to the discretion that is being exercised and the circumstances of this case, it is appropriate that they be considered to have acted in concert in connection with the making of the development application, client and advisor, and were equally responsible for the quality of the material provided.
40. Notwithstanding the now available evidence that indicates that the impetus for the relocated envelope came from Council’s delegate, Mr Gounder, this does not absolve Lee and Lasovase of the obligation to assess the impact on private lands (and all such other relevant impacts) in the making of the amended application. Again, in the decision of Preston CJ in Platford the relevance of this factor (with which I respectfully agree and adopt) was stated at [28] as:

28   Whilst it is true that the duty to take into consideration the relevant matters in determining a development application is imposed on the consent authority, the applicant who seeks consent bears some responsibility to provide adequate information on the relevant matters in or accompanying the development application to enable the consent authority to take the relevant matters into consideration. An applicant who fails to provide adequate information on the relevant matters can hardly complain about any consequential failure of the consent authority to consider the relevant matters.

41. In Reulie No 1 I found that the principle “fault” for the errors identified lay with the Council and Lee and Lasovase. There is no evidence or submission made in this application that would warrant me departing from those findings.
42. The Respondents also sought to apportion the costs liability due to post consent conduct of each Respondent. As is observed above at [9] above, the parties undertook a series of discussions in an attempt to resolve the matter without the need for a hearing. During the course of discussions the Council first filed a submitting appearance, and the other Respondents sought to appear. Shortly after filing its appearance Lee and Lasovase also filed submitting appearances.
43. Discussions continued. It is true to say that at this point in time the Council had no power to do anything to resolve the matter without the need for litigation as the consent remained in force until declared invalid and proceedings would have been required even if it did consent to determine whether the declaration should be made. The only way the proceedings could be avoided was if the consent holder relinquished the development consent. Lee, as the nominated holder of the consent, and Lasovase, as the landholder, had the power to resolve the proceedings by surrender of the development consent.
44. Offers were made by the Applicant that the proceedings be resolved by the voluntary surrender of the development consent and the agreement that each party would pay its own costs. These offers were not accepted.
45. The Council contends that during this period of time it was actively participating in discussions to assist in the parties coming to a resolution of the matter so as to avoid the need for the hearing. I do not consider that the Council acted solely as facilitator. Whilst the Council facilitated discussions with the parties by arranging conferences and the like, at all times it was communicating to the Applicant and Lee and Lasovase that it was confident that the decision made by it was unimpeachable at law.
46. The Council and Lee and Lasovase, by their actions, ensured that the proceedings were inevitable. Lasovase, by refusing to surrender the development consent, ensured that a hearing was required as a declaration was needed to render the consent invalid. However, even though I consider that the rejection of the offer significantly contributed to the costs incurred by the Applicant, the position taken was in part influenced by the advice communicated by the Council.
47. Whilst the Respondents urge that the Court apportion the costs liability between them, where there are identified contributions to conduct on both sides, absent some clear and defining evidence that would permit a clear delineation of proportionate fault, it would be inappropriate in this case to attempt to draw a clear line and designate the relative fault of individual Respondents on individual issues. There is no such evidence available, accordingly, I decline to attempt to allocate such proportions.
48. The circumstances of this case as outlined above lead to the conclusion that the entering of a submitting appearance by all Respondents, whilst a relevant matter, is insufficient, when taken with all of the circumstances of the case to warrant makeing an order otherwise than in accordance with the general rule.
49. For those reasons, I find that the Applicant is entitled to an order that its costs of the proceedings be paid for by the Respondents in accordance with the general rule provided in UCPR 42.1.

Costs of the costs application

50. As each of the Respondents have been unsuccessful in their various applications to depart from the general rule and have not achieved the same or better outcome than one offered before this costs hearing, there is no reason why the Applicant, being successful in this application, should not also have an order that the Respondents pay the costs of this application. I do not consider it appropriate to make any order as between the Respondents as to the costs of this application for the reason that neither has been successful in their applications on the costs application.
51. I consider that, notwithstanding the offers made prior to the costs hearing that each Respondent has been unsuccessful in its applications generally and the applications for apportionment as between themselves. Accordingly, it is appropriate that the Respondents pay the Applicant’s costs of the motion and that each of the Respondents otherwise pay their own costs.

Conclusions and orders

52. For the foregoing reasons, I find that the Applicant is entitled to an order that the Respondents pay its costs of the proceedings and this application for costs.
53. The Court orders that:

1. The Respondents are to pay the Applicant’s costs of the proceedings;
2. The Respondents are to pay the Applicant’s costs of the costs application;
3. The Respondents are to pay their own costs of the proceedings and the costs application; and
4. The exhibits are returned.