GPT Re Ltd v Wollongong City Council

[2006] NSWLEC 658

Reported Decision: 151LGERA 174

Land and Environment Court

of New South Wales

CITATION:

GPT Re Limited v Wollongong City Council [2006] NSWLEC 658

PARTIES:

APPLICANT:
GPT Re Limited

FIRST RESPONDENT:
Wollongong City Council

SECOND RESPONDENT:
Belmorgan Property Development Pty Ltd

FILE NUMBER(S):

41279 of 2005

CORAM:

Biscoe J

KEY ISSUES:

Costs :- apportionment of costs where applicant obtained declaration of invalidity of development consent but failed on all issues except one - whether submitting respondent council liable for any of applicant’s costs where respondent beneficiary of development consent actively defended proceedings.

LEGISLATION CITED:

Land and Environment Court Act 1979 s 69(2)(a)

CASES CITED:

Belongil Progress Association Inc v Byron Shire Council [2000] NSWLEC 118;
Booksan Pty Ltd v Wehbe [2006] NSWCA 103;
Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120;
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 718;
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64;
Cutcliffe v Lithgow City Council [2006] NSWLEC 463;
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261;
Farah v Warringah Council [2006] NSWLEC 544;
GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303;
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748;
J-Corp Pty Ltd v Australian Builders Labourers’ Federated Union of Workers (No 2) (1993) 46 IR 301;
Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480;
Metropolitan Petar v Mitreski [2006] NSWSC 626;
Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81;
Newcrest Mining (WA) Ltd v Commonwealth (FCA, 17 December 1993, unreported);
Oshlack v Richmond River Council (1998) 193 CLR 72;
Waters v P C Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported)

DATES OF HEARING:

13/10/2006

 
DATE OF JUDGMENT: 

10/20/2006

LEGAL REPRESENTATIVES:

APPLICANT:
Mr S Gageler SC
SOLICITORS
Allens Arthur Robinson

FIRST RESPONDENT:
Mr A Galasso SC
SOLICITORS
Phillips Fox

SECOND RESPONDENT:
Mr S Balafoutis, barrister
SOLICITORS
Norman Waterhouse

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

20 October 2006

41279 of 2005

GPT RE LIMITED v WOLLONGONG CITY COUNCIL & BELMORGAN PROPERTY DEVELOPMENT PTY LTD [No 3]

JUDGMENT

HIS HONOUR

:

1 On 1 August 2005 Wollongong City Council, the first respondent, granted development consent 1565/2004 to Belmorgan Property Development Pty Ltd, the second respondent, for a $60 million development in Wollongong. In these proceedings the applicant, GPT Re Limited, successfully claimed that the development consent was void and that Belmorgan should be restrained from carrying out works pursuant to the development consent.

2 The issue now before me is costs. There have been three hearings:

(a) the first was the hearing of the substantive claim on 18 and 19 April 2006. In published reasons for judgment of 9 June 2006, I upheld GPT’s claim that the development consent was void on one of the grounds it advanced, namely, that the council resolution delegating authority to its General Manager to refuse the development consent was invalid: GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303. I rejected all other alleged grounds of invalidity.
(b) the second hearing was on 3 July 2006 when the issues of the Court’s discretion to grant relief and the form of relief were argued. GPT succeeded on these issues also, and on 7 July 2006 I published reasons for judgment in which I made a declaration that the development consent was void and of no effect, and an order that Belmorgan be restrained from carrying out any works on the premises pursuant to the development consent: GPT Re Ltd v Wollongong City Council [No 2] [2006] NSWLEC 401.
(c) the third hearing was on 13 October 2006 when the issue of costs was argued. These reasons for judgment are concerned with the costs issue.

3 GPT sought the following costs orders:

(a) Belmorgan pay the costs of and incidental to the first hearing. Belmorgan, on the other hand, sought an order that GPT pay Belmorgan those costs except for the costs relating to the delegation issue; alternatively, that any costs order in GPT’s favour in respect of the delegation issue should be made against both the council and Belmorgan. The council supported the costs order sought by GPT; whilst acknowledging that if a costs order were to be made in GPT’s favour in relation to the delegation issue, it had a liability for such costs until, but not after, the date of its submitting appearance;
(b) the council and Belmorgan pay the costs of and incidental to the second hearing. Belmorgan and the council have consented to such an order;
(c) the council and Belmorgan pay the costs of the third hearing. Belmorgan submitted that GPT should pay Belmorgan’s costs of this hearing. The council submitted that it should not be included in any costs order relating to this hearing.

4 On 28 October 2005 the applicant filed its Application challenging the validity of the development consent. On 11 November 2005 the council filed a submitting appearance, save as to costs. The return date of the Application was 25 November 2005. On 9 December 2005 GPT filed Points of Claim. The council did not file Points of Defence and took no active part in the proceedings until 27 June 2006, after the main hearing on 18 and 19 April 2006, when it filed a notice of motion seeking leave to be heard as to the relief to be granted by the Court, the form of orders and costs. It was represented by counsel at that hearing on 3 July 2006, when its submissions were not accepted.

5 There are two issues relating to the first hearing. First, the appropriate costs order given that GPT failed on all issues except one. Secondly, the respective liability of each respondent for any costs awarded to GPT.

First Hearing: First Issue

6 Section 69(2)(a) of the Land and Environment Court Act 1979 provides that, subject to the rules and subject to any other Act, costs are in the discretion of the Court. The Land and Environment Court Rules 1996 do not relevantly qualify that discretion. The discretion must be exercised judicially. The usual order is that costs follow the event unless the successful litigant has engaged in some sort of disentitling conduct relating or leading up to the litigation: Oshlack v Richmond River Council (1998) 193 CLR 72 at 96-98 [65] - [70] per McHugh J; Cutcliffe v Lithgow City Council [2006] NSWLEC 463 at [13] (Biscoe J).

7 The way in which the discretion is to be exercised in a multi-issue case where the successful litigant has failed on some issues was summarised in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 by Toohey J who said (omitting most citations):

1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, ‘ issue ’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.

There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16. His Honour sounded what he described as ‘ a note of cautious disapproval ’ of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented:
But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.

8 In Hughes the applicant failed on more issues than he succeeded, and by some margin, although he succeeded in his primary aim. Toohey J considered that it was relevant, but not conclusive, to consider how much hearing time was taken up with evidence and submissions relating to those issues on which the applicant failed. That was not an easy task because much of the evidence bore upon more than one cause of action. His Honour approached the matter on the basis that the applicant had succeeded substantially in what he set out to achieve. Despite this, his Honour held that the applicant had failed on some issues in circumstances which made it not only appropriate that he should not have the costs of those issues, but that there should be some compensation to the respondents for the time taken in meeting those issues both prior to and at the hearing. His Honour considered that justice would be served by awarding the applicant 75 percent of his costs.

9 The three principles enunciated by Toohey J in Hughes were cited by the Full Federal Court in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271:

The propositions enunciated in that case are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues that might be material to the decision in the case: Cretazzo v Lombardi (1975) 13 SASR 4 at 12. In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213; 28 ALR 201, Fisher J regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances. Nevertheless he accepted that where a considerable part of the trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party. Generally speaking, and notwithstanding the considerations referred to by Toohey J and the other authorities mentioned above, the demands of the community for greater economy and efficiency in the conduct of litigation may properly be reflected in a qualification of the presumption that a successful party is entitled to all its costs.

10 In Waters v P C Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported), Mahoney JA (with whom Kirby P and Priestley JA agreed), quoted with approval the following passage from Ritchie’s Supreme Court Procedure:

Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupy the bulk of time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is particularly dominant or separable, it would ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.

11 In Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 at 69, Wilcox J said: “I do not think that courts should be reluctant to recognise the existence of exceptional cases. In these days of extensive court delays and high legal costs the courts should use all proper means to encourage parties to consider carefully what matters they will put in issue in their litigation. If parties come to realise that they will not necessarily recover the whole of their costs, even though they have unsuccessfully raised a discrete issue, they are likely better to consider whether the raising of that issue is a justifiable course to take.” In J-Corp Pty Ltd v Australian Builders Labourers’ Federated Union of Workers (No 2) (1993) 46 IR 301, French J said at 302:

In Inn Leisure Industries Pty Limited v D F MaCoy Pty Ltd (No 2) (1991) 28 FCR 172, I allowed a minor apportionment of costs recoverable by the successful applicant in respect of certain distinct and severable factual issues on which the respondent succeeded. Notwithstanding the principles averted to by Toohey J [in the Hughes case] and reinforced by the other authorities to which I have referred, the demands of the community for greater economy and efficiency in the conduct of litigation may have to be reflected in a softening of the presumption that a successful party is entitled to all its costs. I agree with the observation of Wilcox J in Commissioner of Australian Federal Police v Razzi .

12 In Mok v Minister for Immigration, Local Government and Ethnic Affairs(No 2) (1993) 47 FCR 81 at 84, Keeley J said:

In my opinion the Court’s power to order a successful applicant to pay the costs in respect of an issue raised by the applicant, on which the applicant has failed, ought to be exercised only where the Court, on a consideration of all the circumstances, has concluded that the raising of that issue by the applicant was so unreasonable that it is fair and just to make the order.

13 In Belongil Progress Association Inc v Byron Shire Council [2000] NSWLEC 118 at [14], Cowdroy J adopted the principle that a successful party should pay the costs of an issue upon which it did not succeed only if the raising of the issue was so unreasonable that it is fair to make the order, citing Mok and Trade Practices Commission v Nicholas (above).

14 Many of the authorities to which I have referred relating to apportionment of costs in multi-issue cases were reviewed in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 718 by McClellan CJ and in Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480 at [18] - [22] by Hamilton J.

15 GPT won the war but lost all battles bar one. Should it be awarded all its costs of the war, or part of its costs of the war reflecting the costs of the only battle it won? Should it pay its opponent’s costs of the battles it lost?

16 It is one thing to deprive a successful applicant of the costs of severable issues on which it is failed, it is another thing to order it to pay the other party’s costs of those issues. Cases such as Mok, and Belongil indicate that the latter order may be made where the raising of an issue by the applicant was so unreasonable that it is fair and just to do so. Unreasonable conduct by an applicant procedurally or in the conduct of its case may, I think, also have that result.

17 There is no suggestion of such conduct in the present case, except for a suggestion by Belmorgan that the abandoned issues should be presumed to have been unreasonably advanced since they were abandoned. I would not make that presumption. Refinement of issues, including their abandonment where appropriate, is to be encouraged if community demands for greater economy and efficiency in litigation are to be met. A presumption that an abandoned issue was so unreasonably raised that it is just and fair to order the abandoning party to pay the other party’s costs of that issue works against meeting those community demands and is unwarranted.

18 In support of its claim for an order that GPT pay Belmorgan’s costs except in relation to the delegation issue, Belmorgan cited Farah v Warringah Council [2006] NSWLEC 544. In that case Talbot J referred to a stream of authorities, including Hughes (above), which support the proposition that a successful party who has failed on certain issues may not only be deprived of its own costs in respect of those issues, but may also be the subject of an order to pay its opponent’s costs. The applicant successfully applied to set aside a development consent but failed on a number of issues. His Honour ordered that the beneficiary of the development consent pay half of the applicant’s costs of the issues on which the applicant succeeded and that the applicant pay the beneficiary’s costs of the issues on which the applicant failed. Farah is distinguishable. There the costs of the proceedings were increased by the applicant’s complicated and convoluted pleadings, which were amended on a number of occasions prior to the hearing. All of the points of claim that existed up to the commencement of the hearing were unsuccessful. The respondent council actively participated in the defence of the claim. The applicant and the council agreed to each bear their own costs of the proceedings although the litigation was caused by the council’s error. Farah turned on its own facts and is illustrative of circumstances including procedurally unreasonable conduct which may make it fair and just that a successful applicant pay the respondent’s costs of issues on which the applicant failed.

19 In the present case, in my opinion, there are no circumstances which make it fair and just to order GPT to pay Belmorgan’s costs of the issues on which GPT was unsuccessful.

20 However, in my opinion, GPT should only have its costs of the delegation issue, on which it succeeded. It should not have its costs of the issues on which it failed which are severable. During the first hearing GPT handed up a document which contained the grounds in its Points of Claim which it pressed. Some, ultimately, were not the subject of any submissions by GPT. Thus, GPT either abandoned during the hearing or lost all of its grounds except one.

21 What proportion of costs should be attributed to the successful delegation issue? The following summary of GPT’s arguments, which I accept, was proffered by Belmorgan and not disputed by GPT.

(1) GPT successfully argued that the resolution was invalid because it did not validly delegate any function to the General Manager (paragraph 7(a) in the Points of Claim).
(2) GPT did not rely upon the argument that the resolution deferred for later consideration the conditions to be imposed (paragraph 7(b)). This argument only arose in the event it was held that the resolution granted development consent. Similarly, GPT did not rely upon the argument that the resolution was not the subject of any proper consideration (paragraph 7(c)).
(3) GPT abandoned its argument concerning SEPP 1 set out in paragraphs 8 and 9 of the Points of Claim. Although these points were not expressly abandoned, they were not mentioned in the applicant’s oral or written submissions.
(4) GPT expressly abandoned its argument that the purported objection under SEPP 1 was not an objection within the meaning of that instrument (paragraph 10).
(5) GPT failed in its arguments that there was no power to grant consent because the requisite opinion was not formed under SEPP 1 (paragraphs 11, 12, and 13).
(6) GPT expressly abandoned its argument that SEPP 1 had no application because clause 12A of the LEP was not a development standard (paragraph 14).
(7) GPT expressly abandoned its argument that the consent was issued without the Council being informed of its conditions (paragraph 15).
(8) GPT failed in its argument that the council or delegate failed to form the opinion required under cl 9(3) of the LEP (paragraph 16(a)).

(9) GPT failed in its argument that the council or delegate deferred for later consideration the remediation works and the final design of the development (paragraph 16(b)).
(10) GPT expressly abandoned its arguments that the council or delegate failed to consider relevant considerations and acted manifestly unreasonably (paragraphs 16(c), 18).
(11) GPT expressly abandoned its arguments that the council or delegate failed to consider:
(a) the orderly and economic development of land (paragraph 17(i));
(b) the social and economic impacts in the locality of the development (paragraph 17(iv));
(c) the potential impacts of overshadowing (paragraph 17(v)); and
(d) the public interest (paragraph 17(iv)).
(12) GPT failed in its argument that the council or delegate failed to consider:
(a) the objectives of the zone (paragraph 17(ii)); and
(b) the effect of the development on heritage items (paragraph 17(iii)).

22 Competing estimates were proffered by the parties as a rough and ready guide to the proportion of costs attributable to the delegation point. GPT said that in its written submissions the facts occupied 45 percent, the delegation point 11 percent, deferral of essential considerations 11 percent (this being derivative upon the delegation point), abandoned points 18 percent, and points upon which they were unsuccessful 25 percent. Belmorgan pointed out that the delegation issue occupied approximately 25% of its total submissions. However, that percentage figure did not take into account submissions prepared, but not pressed, by Belmorgan because the grounds were abandoned by GPT at trial. I have found these competing statistics to be of limited assistance.

23 The point upon which GPT succeeded was a legal argument concerning the construction of the council’s resolution purporting to delegate authority. Belmorgan and the council submitted that, unlike the other arguments advanced by GPT, which it lost, this argument required very little evidence. GPT submitted that it succeeded in its primary aim, on a point of claim raised from the outset of the proceedings, in circumstances where the points of claim on which it did not succeed traversed essentially the same evidence and did not add unduly to the length of the two day hearing.

24 The two day hearing of the substantive issues was conducted efficiently on both sides. The relatively short length of the hearing belied the detail of the evidence and the complexity of the issues. Some five lever arch folders of documents were tendered and I was provided with lengthy written submissions, supplemented by oral submissions. The parties must have spent a substantial amount of time prior to the hearing compiling and refining the evidence and the submissions. I accept that relatively little evidence would have been necessary if the proceedings had been limited to the delegation point. If only the delegation point, on which GPT won, had been argued I expect that the hearing would have been over well within a day. It does not follow that the delegation issue therefore accounts for about half the costs which the parties incurred. Regard must also be had to the fact that it was the issue on which GPT primarily focussed during the hearing, the number and nature of the other issues, the volume and nature of the evidence, the likely preparation time and the contents of the written submissions.

25 When considering apportionment of costs in a multi-issue case in which the applicant has failed on severable issues, mathematical precision may often be illusory, the discretion may depend upon matters of impression and evaluation, and a broad-brush approach may be appropriate: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1983) 26 IPR 261 at 271 per the Full Federal Court; Newcrest Mining (WA) Ltd v Commonwealth (FCA, 17 December 1993, unreported) at [10] per French J. A broad-brush approach to apportionment was taken in Booksan Pty Ltd v Wehbe [2006] NSWCA 103 at [21] - [23]; Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480 at [16] (Hamilton J); Metropolitan Petar v Mitreski [2006] NSWSC 626 at [16] - [18] (Hamilton J); and Farah v Warringah Council [2006] NSWLEC 544 at [15] (Talbot J). Taking that approach, which I consider appropriate in the present case, it is my impression, having regard to all the circumstances, that in the order of 25 percent of the costs of and incidental to the main hearing on 18 and 19 April 2006 were attributable to the delegation issue. I therefore propose to order that GPT have 25 percent of those costs.

First Hearing: Second Issue

26 The second issue concerns the respective liability of Belmorgan and the council for those costs.

27 The issue of the appropriate costs order where an applicant succeeds in invalidating a consent and the cause of the invalidity is an error attributable to the consent authority was considered by me in Cutcliffe v Lithgow City Council [2006] NSWLEC 463, where I reviewed the authorities. To that review I would add a reference to Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 (NSWCA). In Cutcliffe I suggested the following general guidelines at [50]:

The following general guidelines may be formulated, based on the cases and principles reviewed in this judgment, for the exercise of the Court’s discretion to order costs where

· an applicant successfully brings proceedings that are necessary to have declared invalid or set aside a development consent or decision of a consent authority;

· the consent authority and the beneficiary of the development consent or decision are necessary or proper parties; and

· the cause of the invalidity is an error of or attributable to the consent authority and not to the beneficiary:

(a) the applicant will ordinarily be entitled to be compensated by an award in its favour of the costs of the proceedings unless it has engaged in disentitling conduct.

(b) where the beneficiary does not defend the proceedings, the applicant’s costs will ordinarily be awarded against the consent authority, whether or not the latter enters a submitting appearance. This is because the cause of the litigation is the error of the consent authority and not of the applicant or the beneficiary. The consent authority cannot immunise itself from costs consequences of its own error by entering a submitting appearance because then a successful applicant cannot be properly compensated in costs. It is not sufficient that a consent authority should bear the applicant’s costs only up to the time of the consent authority’s submitting appearance because the applicant must continue to incur costs thereafter in order to establish, by evidence and argument at a hearing, that it is entitled to declaratory and injunctive relief.

(c) where the beneficiary does defend the proceedings, albeit unsuccessfully, the applicant’s costs will ordinarily be awarded against both the beneficiary and the consent authority, whether or not the latter enters a submitting appearance. The award of costs against the consent authority is because its error is the cause of the litigation. It cannot immunise itself from costs by entering a submitting appearance for the reason given in (b) above. The award of costs against the beneficiary is because it chose to defend the proceedings. A qualification is that the beneficiary alone may be required to bear the applicant’s costs to the extent that they exceed the costs that the applicant would have incurred if both respondents had submitted, being costs attributable to defences that the beneficiary has unsuccessfully raised and the consent authority has not raised. An example may be a defence by the beneficiary that, notwithstanding an invalidating error by the consent authority, the court, for discretionary reasons, ought not to grant any relief.

(d) where the consent authority has submitted and the beneficiary has defended but settles with the applicant who then seeks costs only against the consent authority, the applicant’s costs will ordinarily be awarded against the consent authority and the latter will ordinarily be entitled to an indemnity for an appropriate proportion of those costs from the beneficiary, subject to the qualification referred to in (c) above. This situation may be unusual but it reflects the present case.

28 Belmorgan invoked guideline (c) to submit that the council and Belmorgan should both be liable for any costs of and incidental to the hearing on 18 and 19 April 2006 which were awarded to GPT. The council submitted that it should not be liable for such costs after the date of its submitting appearance. GPT went further in submitting that the council should not be liable for any costs.

29 Costs guidelines can be no more than general. They must be flexible. They must be understood to be the servant, not the master, of the interests of justice, and so must yield where appropriate to the circumstances of the individual case. In Cutcliffe I described the guidelines as “general” and in guideline (c) I referred to “a” qualification. Other qualifications may be just in the circumstances of a particular case. In the present case, the council filed its submitting appearance even before the return date of the originating process. It did not file Points of Defence. It did not actively defend or raise any defence in the main proceedings. Under the qualification identified in Cutcliffe, GPT incurred costs in relation to the delegation issue which exceeded the costs it would have incurred had both respondents submitted, being costs attributable to defences that Belmorgan raised and the council did not raise. Belmorgan actively defended the proceedings in their entirety, including the delegation issue. Had the delegation issue been undefended the hearing, I think, would have been over within a few hours with relatively little evidence required. The facts of Cutcliffe (above) are distinguishable. There the respondent council actively defended the proceedings until shortly before the trial when the other respondent, the beneficiary of the development consent, surrendered on the issue on which the applicant succeeded. In those circumstances, I made orders which had the effect that both respondents became equally liable for 85 percent of the applicant’s costs. The reduction reflected another issue on which the applicant surrendered. In the present case the council accepted in submissions that it had a costs liability up to the date of its submitting appearance. Where a council enters an early submitting appearance without raising any defence but the beneficiary defends the proceedings, it is generally fair to limit the council’s costs liability to half of the costs of the issue on which the applicant succeeds to the date of the council’s submitting appearance. In this case, therefore, the council’s costs liability should be limited to half of the costs of the delegation issue to the date of the submitting appearance. In all the circumstances, the bulk of the costs relating to the delegation issue should be borne by Belmorgan. This should be reflected in an order that Belmorgan pay 20 percent of GPT’s costs and that the council pay 5 percent of GPT’s costs.

SECOND HEARING

30 The parties are agreed that Belmorgan and the council are both liable for GPT’s costs of and incidental to the second hearing on 3 July 2006, where they both actively and unsuccessfully resisted the relief sought by GPT.

31 As regards the costs of the third hearing on 13 October 2006, when costs were argued, none of the parties have been entirely successful. GPT has not been successful in obtaining the order it sought, which the council supported, that Belmorgan pay the whole of its costs of and incidental to the first hearing. Belmorgan has not been successful in obtaining the order it sought that GPT pay its costs in relation to the issues on which GPT failed at that hearing. Overall, I would say that there has been a draw. Therefore I propose to make no order as to the costs of the hearing on 13 October 2006.

Orders

32 I make the following orders:

(1) The second respondent pay 20 percent of the applicant’s costs of and incidental to the hearing of the proceedings on 18 and 19 April 2006, as agreed or assessed.
(2) The first respondent pay 5 percent of the applicant’s costs of and incidental to the hearing of the proceedings on 18 and 19 April 2006, as agreed or assessed.
(3) The first respondent and the second respondent pay the applicant’s costs of and incidental to the hearing of the proceedings on 3 July 2006, as agreed or assessed.
(4) No order as to the costs of and incidental to the hearing of the proceedings on 13 October 2006.
(5) The exhibits may be returned.