Costs
9 The parties have expressly asked me to reserve the question of costs pending the finalisation of these declarations and orders. However, the council has been substantially successful and has been fully justified in bringing these proceedings. Prima facie, there would seem to be no reason why it should not receive an order for the whole of its costs, but an opportunity is given to the respondents to make submission to the contrary, if they wish.
10 The council also seek its costs of the concurrent proceedings in Class 1 of the Court's jurisdiction. The presumptive rule arising from r 3.7(2) of the Land and Environment Court Rules 2007 is that no order as to the whole or any part of the costs will be made in such proceedings unless the Court considers that the making of such an order is fair and reasonable in the circumstances.
11 Rule 3.7(3) provides examples of circumstances in which the presumptive rule against any order for costs might be displaced, but the examples are neither definitive nor exhaustive. One of the circumstances which the Court may accept as displacing the presumptive rule is where the proceedings have been determined on a critical issue, which was preliminary to the merit evaluation.
12 The council has ultimately succeeded in its contention that the merit appeal is not within the jurisdiction of the Court. Absent the council's participation, the issue of jurisdiction would not have been raised, neither Austral nor the Minister recognising the problem. Furthermore, the council itself actively participated in all procedural steps, frequently consenting to making directions and orders, up until the time when the council raised its objection as to competency of the appeal.
13 The relevant facts are as follows. On 2 February 2007, Austral commenced an appeal in Class 1 of the Court's jurisdiction against the Minister's determination of 14 February 2006 to refuse its development application for the upgrade and expansion of the Careel Bay Marina. On 23 March 2007, the Court granted the council leave to be heard in that appeal as if it were a party to the proceedings. On 4 May 2007, the Court by consent of the council and the Minister, granted Austral leave to amend the development application the subject of the appeal. On 2 October 2007, the council, having received the briefing note and accompanying plan upon which the Minister formed his opinion of 3 May 2007, raised the objection to competency of the appeal. On 26 October 2007, the council commenced these proceedings, alleging inter alia that the Court does not have jurisdiction to determine the concurrent proceedings in Class 1 of the Court's jurisdiction.
14 Austral says that it is in effect the innocent party in that it made a development application to the alleged consent authority and it has acted in good faith at all times. Austral, however, opposed legal contentions of the council and argued that the Minister was, in fact, the consent authority and that the Court had jurisdiction to deal with the merit evaluation of its development application.
15 In my opinion the costs of the council are adequately met by a costs order in the present proceedings. The council's legal contentions in the planning appeal were not separate or distinct from the relief it successfully sought under the different head of the Court's jurisdiction - they involve mutually relevant facts and akin law principles. Both proceedings on the council's part essentially involve challenging the validity of the same administrative decision. It would not be fair or reasonable to also award costs in favour of the council in the planning appeal where the ultimate relief was achieved as a consequence of the judicial review proceedings and in circumstances where it actively participated in those proceedings until it raised the question of jurisdiction.
16 Moreover, it is the fundamental responsibility of a party to a litigation to bring an application raising the question of jurisdiction as soon as it becomes aware that the court lacks jurisdiction to hear and determine a matter.
17 I note that no order for costs is sought by the council against the Minister in the planning appeal. There will, accordingly, be no order for costs in the planning appeal.