Failure by planning authority to determine application
Statutory requirement to order planning authority to pay costs
Quick Take
1LUPAA s 59(5) is mandatory, not discretionary: where a planning authority fails to determine an application within the prescribed period, the Tribunal must direct the authority to pay both the other party's costs and the Tribunal's costs, and alleged disentitling conduct by the applicant cannot defeat that statutory entitlement.
2The determination of costs under s 59(5) involves an evaluative judgment (assessing what the costs are) rather than a discretion in the strict sense, meaning there is in theory only one correct answer even where reasonable minds might differ.
3In the absence of circumstances justifying deviation, 90% of the Supreme Court scale is the appropriate percentage for costs in Resource and Planning Stream proceedings, reflecting the predominant practice and the desirability of certainty and consistency.
