Land and Environment Court of New South Wales CITATION : Grant v Kiama Municipal Council [2006] NSWLEC 70 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT John Bruce Grant PARTIES : RESPONDENT Kiama Municipal Council FILE NUMBER(S) : 11245 of 2003 CORAM: Preston CJ KEY ISSUES: Costs :- planning appeals - no cost order unless fair and reasonable - proposed cost order by Commissioner - concurrence of Chief Judge required - whether concurrence should be granted - conduct of party in not complying with Court directions resulted in unnecessary extra court appearance - conduct of party in not submitting adequate information with development application or in response to issues - cost order in relation to such conduct fair and reasonable. Environmental Planning and Assessment Act 1979, s 97 LEGISLATION CITED: Land and Environment Court Act 1979, s 69(2), s 69(8) Land and Environment Court Rules 1996, Pt 1 r5A, Pt 16 r4 Aldi Foods Pty Limited v Holroyd City Council [2005] NSWLEC 338 (27 June 2005); Barclay v Mosman Council (No. 2) [2005] NSWLEC 291 (3 June 2005); Belgiorno-Nettis v Mosman Municipal Council [2004] NSWLEC 731 (24 December 2004); Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401; Bruyan Hawkesbury City Council [2006] NSWLEC 51 (15 February 2006); Cadonia Pty Ltd v Leichhardt Municipal Council [1994] NSWLEC 122 (5 August 1994); CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 673 (24 November 2005); Donald Campbell & Co v Pollak [1927] AC 732; Donald Crone & Associates v Bathurst City Council (1988) 130 LGERA 139; Ervin Mahrer & Partners v Strathfield Council (2002) 123 LGERA 24; Evans v Maclean Shire Council (2004) 133 LGERA 270; Gee v Port Stephens Council (2003) 131 LGERA 325; Gibson v Mosman Municipal Council (2001) 116 LGERA 397; Golden v Coffs Harbour City Council (No. 2) (1991) 72 LGRA 406; Gorczynski v Perera (2003) 124 LGERA 286; Grant v Kiama Council [2005] NSWLEC 58 (4 July 2005); Grant v Kiama Council (No. 2) [2005] NSWLEC 629 (11 October 2005); Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005); Hutchison 3G Australia Pty Ltd v Waverley Council [2003] NSWLEC 449 (6 February 2003); Kennedy v Woollahra Municipal Council [2005] NSWLEC 124 (4 March 2005); Kennedy & Anor v Woollahra Municipal Council [2005] NSWLEC 226 (22 July 2005); CASES CITED: Khouri v Burwood Council [2001] NSWLEC 278 (6 December 2001); Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737 (9 December 2005); Krivanek v Blue Mountains City Council (No. 2) [2004] NSWLEC 732 (24 December 2004); Latoudis v Casey (1990) 170 CLR 534; Macdonald v Mosman Municipal Council (No. 2) (2000) 107 LGERA 211; Mudie v Gainriver Pty Ltd (2002) 124 LGERA 393; McCalden v Newcastle City Council (1983) 10 APA 143; Minas v Botany Municipal Council (1988) 65 LGRA 129; Mirvac Pty Ltd v Parramatta City Council (1983) 9 APA 61; Moodley v Botany Bay City Council [2004] NSWLEC 762 (17 June 2004); Morris v Gosford City Council [1996] NSWLEC 254 (29 November 1996); Oshlack v Richmond River Council (1998) 193 CLR 72; Pancho Properties Pty Limited v Wingecarribee Shire Council [2004] NSWLEC 620 (9 November 2004); Prestige Building Services Pty Ltd v Coffs Harbour City Council [2006] NSWLEC 72 (21 February 2006); Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319; Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333; Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153; Shaynd v Ku-ring-gai Municipal Council (2005) 138 LGERA 395; Starray v Sydney City Council (2001) 112 LGERA 438; Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005); Teller Properties Pty Limited v Randwick City Council (1994) 84 LGERA 369; Wyong Shire Council v Smith [1992] NSWLEC 134 (24 Dececmber 1992) 22/11/2005 (applicant's written submissions) 25/11/2005 (respondent's written submissions) DATES OF HEARING: 12/12/2005 (leave granted to file supplementary submissions) 12/12/2005 (applicant's supplementary submissions) 20/12/2005 (respondent's supplementary submissions) DATE OF JUDGMENT: 02/22/2006 APPLICANT Ms L M Byrne (barrister) SOLICITORS LEGAL REPRESENTATIVES: Thurlow Fisher RESPONDENT Mr P V Moggach (solicitor) SOLICITORS Kearns & Garside JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 22 FEBRUARY 2006 11245 OF 2003 GRANT V KIAMA MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: The applicant, Mr John Grant, has been successful in concluded class one proceedings, being an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") against the refusal by the respondent, Kiama Municipal Council ("the Council"), of the applicant's development application. 2 The development proposed by the applicant comprised a tourist facility at 25 Princes Highway, Broughton, about 8 kilometres from the town of Berry. 3 On 4 July 2005, Commissioner Moore delivered judgment upholding the appeal: Grant v Kiama Council [2005] NSWLEC 58 (4 July 2005). The parties were directed to settle the form of orders and conditions to give effect to the decisions. This was eventually done and an order granting development consent subject to conditions was made on 12 October 2005. 4 The Council, by notice of motion dated 15 September 2005, sought an order that the applicant pay its costs of certain elements or in relation to certain issues on the appeal. 5 On 11 October 2005, Commissioner Moore heard the Council's motion for costs and delivered ex tempore judgment: Grant v Kiama Municipal Council (No. 2) [2005] NSWLEC 629 (11 October 2005). Commissioner Moore concluded: "20. I am therefore of the opinion that the order to the making of which I should seek the concurrence of the Acting Chief Judge will be that the applicant is to pay the Council the sum of $3,778.75 – this being the total of the works undertaken by Mr Moggach and Mr MacIntosh after 11 May 2004 and costs of the telephone call over 2 May 2005 with such sum to be paid by the applicant to the respondent within sixty days of the date of making of the order. 21. With the respect to the costs of this morning's hearing, as the respondent and applicant are both almost half successful I do not propose to seek the concurrence of the Chief Judge to the making of any order for costs of this hearing. 22. The parties' attention is drawn to the provisions of paragraph 10 of the Consolidated Practice Direction that will give them, in effect, fourteen days from the date of the provision of these reasons together with the proposed draft order in which to make any submissions that they might wish to make to the Acting Chief Judge as to whether or not he should concur in the making of the order that I have proposed". 6 The obligation to seek the concurrence of the Chief Judge follows from s 69(8) of the Land and Environment Court Act 1979 ("the LEC Act"). That provides that a commissioner may not make an order for costs under s 69 of the LEC Act except with the concurrence of the Chief Judge. 7 At the time Commissioner Moore determined the Council's motion for costs, paragraph 10 of the Consolidated Practice Direction set out the procedure for a commissioner determining that a proposed order for costs should be made and for making submissions to the Chief Judge on the question of whether concurrence to the proposed order for costs should be given. This practice direction has subsequently been amended (on 23 December 2005). Nevertheless, matters that were commenced before the change in the practice direction are to be dealt with under the former practice direction. 8 Pursuant to the former practice direction and as invited in paragraph 22 of Commissioner Moore's judgment on costs, both of the parties filed written submissions arguing that the concurrence of the Chief Judge should not be given to Commissioner Moore's orders but instead different orders should be made. The applicant's written submissions are dated 22 November 2005 and the respondent's submissions are dated 25 November 2005. 9 Subsequently, after publication of my judgment in CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 673 (24 November 2005) in which I noted that there was a question as to the proper approach that ought to be adopted by the Chief Judge in determining whether to grant concurrence to an order proposed by a commissioner under s 69 of the LEC Act in relation to costs (at [9]), the applicant sought and was granted on 12 December 2005 leave to file supplementary submissions on this question. The Council was also granted leave to do likewise. The applicant filed submissions on 12 December 2005 and the Council filed supplementary submissions on 20 December 2005. Relevant legislative provisions concerning costs 10 Section 69 of the LEC Act states, so far as is relevant: "(2) Subject to the rules and subject to any other Act: (a) costs are in the discretion of the Court; (b) the Court may determine by whom and to what extent costs are to be paid; (c) the Court may order costs to be assessed on the basis set out in division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis. (8) A Commissioner or Commissioners may not make an order under the section except with the concurrence of the Chief Judge". 11 Part 16 rule 4 of the Land and Environment Court Rules 1996 ("the Rules") provides: "(1) This rule applies to the following proceedings in classes 1, 2 and 3 of the Court's jurisdiction - (a) proceedings under sections 95A, 96, 97, 98 109K, 121ZK, 121KZM and 149F of the Environmental Planning and Assessment Act 1979… (2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of a particular case, fair and reasonable". Approach to costs in class 1 proceedings 12 The approach embodied in Part 16 rule 4(2) of the Rules is that an order for costs will not be made in class 1 proceedings unless the Court considers the making of a costs order is, in the circumstances of a particular case, fair and reasonable. 13 In Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005), Lloyd J stated at [4]: "4. The language of the rule maintains the general presumption that there will not ordinarily be any order for costs in proceedings to which the rule applies, unless in the particular case there is some circumstance which would make it fair and reasonable that there should be an order for costs. In other words, costs will not be ordered in proceedings to which the rule applies unless in the particular case it is fair and reasonable to depart from the underlying presumption". 14 In Aldi Food Pty Limited v Holroyd City Council [2005] NSWLEC 338 (27 June 2005), Talbot J said at [5]: "[5] The Rules make it plain that the approach to an application for an order for costs in class 1 proceedings is fundamentally unchanged from the historical position to the extent that the underlying principle is that there will generally be no order as to costs. Accordingly, unless it is in the circumstances of the particular case otherwise fair and reasonable, the Court will approach the exercise of its discretion on the basis that parties are to remain confident they may commence or defend proceedings without the onerous threat of incurring liability for costs other than their own, even if they are not the successful party. In other words costs will not be awarded in the proceedings referred to in Part 16, rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award for costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable". See also Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [11]. 15 An examination of the cases reveals a variety of circumstances where courts have considered that it would be fair and reasonable to make an order for costs. These include the following circumstances, although these do not exhaust the circumstances: (a) where the proceedings cease to have the character of merits review, such as where a central issue is whether there is power to grant the approval sought at all: Teller Properties Pty Limited v Randwick City Council (1994) 84 LGERA 369 at 371; Gee v Port Stephens Council (2003) 131 LGERA 325 at 339 [56] and 340 [60]; Pancho Properties Pty Limited v Wingecarribee Shire Council [2004] NSWLEC 620 (9 November 2004) at [19]; Shaynd v Ku-ring-gai Municipal Council (2005) 138 LGERA 395 at 400, [21]-[22]; and Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737 (9 December 2005) at [52]; but there may be exceptions where no order is appropriate: Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401 at 405 [7] – 407 [12] and Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [15]-[19]; (b) where the matter the subject of the costs application involves only a preliminary question of law: Teller Properties Pty Limited v Randwick City Council (1994) 84 LGERA 369 at 371; Gibson v Mosman Municipal Council (2001) 116 LGERA 397 at 400; Gee v Port Stephens Council (2003) 131 LGERA 325 at 339 [56] and 340 [60]; Shaynd v Ku-ring-gai Municipal Council (2005) 138 LGERA 395 at 400 [21]-[22]; but, again there may be exceptions where no order is appropriate: Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401 at 405 [7] – 407 [12] and Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727 (16 December 2005) at [15]-[19]; (c) where a party fails to provide or delays unreasonably in providing information or documents required as part of the application for approval, including statements required by the relevant statute (such as an environmental impact statement or species impact statement required by s 78A(8) of the EPA Act, or statement of environmental effects required by para 2(1)(c) in Part 1 of Schedule 1 and cl 50(1)(a) of the Environmental Planning and Assessment Regulation 2000) or statements or information required by an environmental planning instrument, or information or documents centrally relevant to the development the subject of the application and necessary to enable a consent authority to gain a proper understanding of and to give proper consideration to the application: Bruyan v Hawkesbury City Council [2006] NSWLEC 51 (15 February 2006) at [14] – [15] and Barclay v Mosman Council (No. 2) [2005] NSWLEC 291 (3 June 2005) at [17]-[23]; (d) where a party has acted unreasonably in the conduct of the proceedings such as: (i) delaying unreasonably in taking action or making proper concessions or agreeing to proper amendments to originating process, pleadings, evidence or interlocutory directions and orders: Statewide Developments Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 353 (1 July 2005) at [26] and [27] and Prestige Building Services Pty Ltd v Coffs Harbour City Council [2006] NSWLEC 72 (21 February 2006) at [22]; or (ii) unnecessarily protracting the proceedings, either during the interlocutory phase in preparation for the hearing (such as by failing to comply with court directions and orders in relation to pleadings, evidence or production of documents or failing to attend or being ill-prepared when attending callovers or directions hearings) or at the hearing (such as by prolix argument, protracted examination or cross examination of witnesses, repetition of evidence from experts or other witnesses, adduction of irrelevant evidence, innumerable or baseless objections to evidence, adopting a scattergun approach by raising every conceivable objection to a proposed development or elevating matters of minutiae and trivia to issues to major significance): Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153; Donald Crone & Associates & Bathurst City Council (1988) 130 LGERA 139 at 142, 143; Golden v Coffs Harbour City Council (No. 2) (1991) 72 LGRA 406 at 407; Oshlack v Richmond River Council (1998) 193 CLR 72 at 98 [69]; and Gorczynski v Perera (2003) 124 LGERA 286 at 302 [86]; (e) where a party has acted unreasonably in circumstances leading up to the proceedings, such as effectively inviting the litigation: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-98 [69]; Evans v Maclean Shire Council (2004) 133 LGERA 270 at 275 [21]-[24]; and see Donald Campbell & Co v Pollak [1927] AC 732 at 812; (f) where the proceedings or the defence of the proceedings has been commenced or continued in circumstances where the applicant or respondent respectively, properly advised, should have known that it had no chance or very poor prospects of success: Broadwater Action Group Inc v Richmond Valley Council (No. 2) (2003) 129 LGERA 401 at 411 [31]- 421 [36]; Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319 at 325; Minas v Botany Municipal Council (1988) 65 LGRA 129 at 136; Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333 at 335-336; Wyong Shire Council v Smith [1992] NSWLEC 134 (24 December 1992) at pp 8-9; Cadonia Pty Ltd v Leichhardt Municipal Council [1994] NSWLEC 122 (5 August 1994) at p 5; Morris v Gosford City Council [1996] NSWLEC 254 (29 November 1996) at pp 15-16; Mudie v Gainriver Pty Ltd (2002) 124 LGERA 393 at 406 [38], [40]-[42], 414 [66], [68]; and Krivanek v Blue Mountains Council (No. 2) [2004] NSWLEC 732 (24 December 2004) at [4]; and (g) where a party conducts its case in the proceedings for extraneous purposes, such as where a consent authority contests an appeal against its decision not to grant an approval for reasons unassociated with the proceedings, not in good faith, in dereliction of duty or not on a rational basis: Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319 at 325-326; Mirvac Pty Ltd v Parramatta City Council (1983) 9 APA 61 at 69; McCalden v Newcastle City Council (1983) 10 APA 143 at 148; and Belgiorno-Nottis v Mosman Municipal Council [2004] NSWLEC 731 (24 December 2004) at [3]. The Commissioner's decision on costs 16 The Council, although unsuccessful viewed from the perspective of the outcome of the proceedings, nevertheless sought that the applicant pay its costs in relation to four elements: (a) a telephone callover on 2 May 2005; (b) the water supply and effluent treatment issues; (c) the landscaping issue; and (d) the issues relating to the design of the intersection of the entrance way to the site from the Princes Highway. 17 In relation to the first element, the telephone callover on 2 May 2005, the Council submitted that it was only rendered necessary by the applicant failing to comply with previous directions and orders of the Court. Commissioner Moore noted that the applicant had conceded, properly in Commissioner Moore's opinion, that the applicant should pay the Council's costs of that item: [3] of the judgment on costs. The amount of the costs was apparently $385. 18 In relation to the second element, the water supply and effluent treatment issues, Commissioner Moore drew a distinction between the work undertaken by the court-appointed expert on this issue, Mr MacIntosh, in the period between the time of his appointment and approximately 11 May 2004 (when he reported to both the Council and to the applicant that he did not have sufficient information to enable him to determine matters) and in the period after 11 May 2004. 19 In the first period, Commissioner Moore held that the work undertaken by Mr MacIntosh was, "merely work in discharge of what I considered to be the proper agreed brief given to him as a consequence of his agreed appointment as a court appointed expert on those issues": [11] of the judgment on costs. Commissioner Moore was not satisfied that it would be appropriate to make any order for costs in favour of the Council for work done by Mr MacIntosh, and any legal costs associated with having Mr MacIntosh discharge those duties, up to and including 11 May 2004: [12] of the judgment on costs. 20 However, Commissioner Moore considered that the position was different after 11 May 2004. Commissioner Moore held that on that date "it became clearly identified by the court-appointed expert that amendments to the plans dealing with that aspect of the application were required and that further professional work by the Council's solicitor and by Mr MacIntosh was required to deal with them": [13] of the judgment on costs. Commissioner Moore noted that if leave to amend the plans had been sought to deal with the matters raised by the court-appointed expert, a term of granting leave would have been to require the applicant to meet all the additional costs associated with such amendments: [14] of the judgment on costs. Commissioner Moore held that making an order for professional costs achieves the same effect; it is the price of permitting the applicant to amend its plans: [15] of the judgment on costs. 21 The amount of costs sought in relation to this element was $3,393.75, comprising the Council's portion of Mr MacIntosh's costs post 11 May 2004 and the Council's legal costs relating to that issue post that date: [15] of the judgment on costs. 22 In relation to the third element, the landscaping issue, Commissioner Moore held that the Council should not receive its costs relating to landscaping. Commissioner Moore stated that: "Here, I am satisfied that the costs which are sought for the period effectively between 6 June 2004 and 24 December 2004 (when the final landscaping plan was filed) related to ordinary matters in the ebb and flow of a contested hearing in this Court. There are no circumstances peculiar to that period of time and that issue which would make it fair and reasonable to impose the additional $400 of legal costs sought by the applicant": [16] of the judgment on costs. 23 In relation to the design of the entrance to the property from the Princes Highway, Commissioner Moore summarised the position as follows: " On 4 June 2004 a statement of evidence was served by a traffic engineer engaged by the applicant who proposed a particular road entrance design; · The standard of that intersection design was contested by the Council; and · Mr Moggach [the solicitor for the Council] arranged for an officer of the Roads and Traffic Authority ("the RTA") to prepare a report responding to the applicant's expert evidence and proposing an alternative design acceptable to the RTA. 18. The design of the entrance was not a matter that was contested before me in the hearing as, following the filing of the statement of evidence by the RTA officer, the applicant accepted the RTA's proposed design and therefore the reports were not needed to be dealt with by me. 19. I am satisfied that this element, too, is a matter relating to the normal ebb and flow of contested proceedings. I am certainly not satisfied that there is anything in the conduct of the applicant, in this regard, that would make his conduct so unreasonable as to require these costs to be awarded to the respondent council: [17]-[19] of the judgment on costs." 24 As a result, Commissioner Moore granted costs in relation to the first two elements, namely the telephone callover on 2 May 2005 and costs in relation to the water supply and effluent treatment issues after the report of the court appointed expert on 11 May 2004, but not in relation to the other two elements of landscaping and the design of the entrance to the property from the Princes Highway. The total of the costs of the first two elements allowed by Commissioner Moore was $3,778.75: [20] of the judgment on costs. The applicant's submissions to the Chief Judge 25 The applicant submitted that concurrence should not be granted to the proposed orders of Commissioner Moore but instead the following orders should be made: (a) No order as to costs of the appeal; and (b) The respondent pay the applicant's costs of the hearing of the Council's motion for costs on 11 October 2005. 26 The applicant submitted that concurrence should not be granted to the orders proposed by Commissioner Moore because "there was a risk of an error of law in the making of those orders". The Chief Judge in determining whether to grant concurrence must consider any such issue raised by the parties: paragraph 8 of the applicant's submissions dated 22 November 2005. 27 The error of law is that the Commissioner "failed to take into account a relevant consideration, namely, that the Applicant was the successful party, and in circumstances where the Applicant did not seek any of his costs of the proceedings, it was not 'fair and reasonable' for him to have to pay all his own costs and some of the Council's costs": paragraph 9 of the applicant's submissions dated 22 November 2005. 28 The applicant submitted that Part 16 rule 4 of the Rules creates a presumption against any order as to costs. The party seeking to set aside that presumption ordinarily has to establish that it is fair and reasonable to make an order as to costs: paragraph 21 of the applicant's submissions dated 22 November 2005. 29 The applicant submitted that the promulgation of the rule in Part 16 rule 4 does not mean that the outcome of the proceedings is irrelevant; it is clearly a factor going to what is "fair and reasonable": paragraph 22 of the applicant's submissions dated 22 November 2005. 30 The applicant submitted the Commissioner Moore erred in stating in paragraph 9 of his judgment as to costs that: "Fairness and reasonableness are neither confined to nor contingent on a party winning the result which it has sought in the proceedings". 31 The applicant submitted that this statement fails to take into account Part 16 rule 4 and the decisions of the High Court in Latoudis v Casey (1990) 170 CLR 534 and Oshlack v Richmond River Council (1998) 193 CLR 72: paragraphs 20 and 22 of the applicant's submissions dated 22 November 2005. 32 The applicant next submitted that Commissioner Moore erred in being guided "by a practice that has grown up in the court since the enactment of Pt 16 r 4, of awarding costs against a party, for 'various indulgences' along the way of the proceedings: see at para [10]": paragraph 24 of the applicant's submissions dated 22 November 2005. 33 The applicant submitted that "the caselaw does not reveal such a clear proposition that Commissioners must apply": paragraph 25 of the applicant's submissions dated 22 November 2005. The applicant cited Aldi Foods Pty Ltd v Holroyd City Council [2005] NSWLEC 338 (27 June 2005). The applicant sought to distinguish Kennedy v Woollahra Municipal Council [2005] NSWLEC 226 (22 July 2005) where the Chief Judge granted concurrence to a commissioner's proposed order that the applicant pay the costs of the council occasioned by the applicant being allowed to rely on the appeal on amended plans as a result of recommendations of a court-appointed expert: Kennedy v Woollahra Municipal Council [2005] NSWLEC 124 (4 March 2005), [10]. 34 The applicant submitted that: "To use Kennedy as a precedent for parties, particularly unsuccessful ones, to apply for costs of changes to proposals as suggested by court appointed experts would not appear to be entirely valid. A court appointed expert ought to suggest changes to proposals if, particularly in this case in relation to the issue of on-site effluent disposal, that will provide a better outcome. To burden those applicants who respond to those suggestions by levying the costs of the other parties on them as well as their own is not "fair and reasonable" in all the circumstances and could lead to the discouragement of the use of court appointed experts": paragraph 27 of the applicant's submissions dated 22 November 2005. 35 The applicant then submitted that the conduct of the case "did not differ very significantly from many class 1 appeals and a number of steps which in hindsight which might have seemed unnecessary were part of the ebb and flow of litigation": paragraph 29 of the applicant's submissions dated 22 November 2005. 36 The applicant submitted that "there was conduct on both sides that could be considered part of the ebb and flow of litigation" which meant that the appropriate decision is that there be no orders as to costs: paragraph 30 of the applicant's submissions dated 22 November 2005. 37 The applicant cited in support the statement of Cowdroy J in Khouri v Burwood Council [2001] NSWLEC 278 (6 December 2001) at [17] that: "The appropriate consideration remains one of reasonableness. If the parties conducted the litigation in a manner that could be reasonably expected, that will generally be appropriate to make no order as to costs: see David Crane & Associates Pty Ltd v Kogarah Council [1998] NSWLEC 121 (10 June 1998)". 38 Finally, the applicant withdrew the concession it had made before Commissioner Moore in relation to the costs of the callover on 2 May 2005. Instead, the applicant submitted that it would not be fair and reasonable for the applicant to pay its costs in relation to that callover when the applicant was successful on the appeal: paragraph 31 of the applicant's submissions dated 22 November 2005. The Council's submissions to the Chief Judge 39 The Council also submitted that concurrence should not be granted to the proposed orders of Commissioner Moore and instead: (a) the applicant should pay not only the Council's costs in relation to the water supply and effluent treatment issues proposed by Commissioner Moore for the period after 11 May 2004, but also for the period before 11 May 2004 (being a further $1,918.75): paragraph 19 of the Council's submissions dated 25 November 2005; and (b) the applicant should pay the Council's costs of the costs hearing on 11 October 2005: paragraph 24 of the Council's submissions dated 25 November 2005. 40 In relation to the applicant's primary argument that there should be no order for costs against the applicant because the applicant was successful in the proceedings, the Council submitted that the mere fact that the Council was unsuccessful does not disentitle it to an order for costs if it would be fair and reasonable to order the applicant to pay the Council's costs: paragraph 7 of the Council's submissions dated 25 November 2005. 41 The Council submitted that one circumstance where it would be fair and reasonable to order a successful party to pay an unsuccessful party's costs would be where "significant modification of elements of an application has occurred between lodgement of the appeal and approval": paragraph 7 of the Council's submissions dated 25 November 2005. The Council cited the Chief Judge's decision to grant concurrence in Kennedy v Woollahra Municipal Council [2005] NSWLEC 226 (22 July 2005): paragraph 6 of the Council's submissions dated 25 November 2005. 42 In relation to the water supply and effluent treatment issues, the Council submitted: (a) The first statement of issues dated 15 December 2003 was drafted by the Council on the basis that there was insufficient information for the consent authority to conclude that there was an adequate water supply and that effluent could be properly disposed of; (b) The court appointed expert, Mr MacIntosh, agreed that proper information had not been supplied; (c) It was only after Mr MacIntosh's report was served on 11 May 2004 that the applicant served reports in relation to effluent and water matters; (d) These reports satisfied the Council as to the water supply issue but the siting as to the effluent disposal area was considered inappropriate because of its proximity to a water course and car park. The statement of issues was amended accordingly; (e) The court appointed expert, Mr MacIntosh, agreed, that the effluent disposal area was inappropriately sited; and (f) Only after service of Mr MacIntosh's report was the effluent disposal area moved away from the water course in the car park to a treatment area which was supported by both the Council and Mr MacIntosh. The issue of effluent disposal was then deleted by the Council: paragraphs 10-15 of the Council's submissions dated 25 November 2005. 43 By reason of these matters, the Council submitted that it is fair and reasonable that the applicant pay the Council's costs associated with issues of adequacy of water and effluent treatment because: " the development application was clearly deficient in the supply of information from its earliest time and that the applicant was aware of that deficiency by the statement of issues and the notice of determination by refusal which had issued; there was no attempt to provide any information in relation to these matters until after the first report from Mr MacIntosh had been served; the adequacy of water supply and appropriateness of the effluent disposal area were essential matters to be satisfied by the development application; if there had been a proper supply of reports and assessment of this matter before the appointment of Mr MacIntosh by the Court, Council would not have incurred unnecessary expense associated with these issues, including the fees paid to Mr MacIntosh": paragraph 17 of the Council's submissions dated 25 November 2005. 44 The Council submitted that the cost of the work conducted by the Council's solicitors and Mr MacIntosh until 1 May 2004 "would not have been incurred by Council if the applicant had submitted proper information before the appointment of Mr MacIntosh": paragraph 18 of the Council's submissions dated 25 December 2005. 45 For this reason, the Council submitted that the applicant should be ordered to pay not only the amount already determined by Commissioner Moore (being $3,393.75), but also the costs before 11 May 2004 (being a further $1,198.75): paragraph 19 of the Council's submissions dated 25 November 2005. 46 In relation to the costs of the telephone mention, the Council submitted that the telephone mention of 2 May 2005 was only required because of the failure of the applicant to comply with earlier directions made by Commissioner Moore. Such conduct of the applicant warranted the costs order in favour of the respondent on this element: paragraphs 22 and 23 of the Council's submissions dated 25 November 2005. 47 In relation to the costs of the costs hearing on 11 October 2005, the Council submitted that the applicant was unsuccessful in opposing the making of any order that it should pay the respondent's costs. Although Commissioner Moore did not order all of the costs sought by the Council, he did order some costs, and hence the applicant should pay the respondent's costs of the costs hearing of 11 October 2005: paragraph 24 of the Council's submissions dated 25 November 2005. Supplementary submissions on concurrence of Chief Judge 48 Both parties, pursuant to leave granted on 12 December 2005, made supplementary submissions on the nature of the power of concurrence under s 69(8) of the LEC Act. 49 The applicant, in his supplementary submissions dated 12 December 2005, paragraph 3, submitted that the proper approach to the nature of the concurrence power was in accordance with the observations of Pearlman J in Geoform Design Pty Ltd v Randwick City Council (1995) 87 LGERA 140 at 147: "The respondents submitted that I should now exercise the power to grant concurrence under s 69(8), so as to enshrine the agreement which the parties reached. Even if I were to do so, it seems to me that I would have to do so acting judicially and I would be required to take into account all factors relevant to an exercise of a discretion as to whether to award costs. To do that would be no different, so far as concerns the proper exercise of discretion, from exercising the same power under s 69(2) of the Court Act, upon the notices of motion which have been filed in accordance with clause 10 of the Practice Direction. It seems to me more in accordance with this Court's current practice that I proceed to determine the question of costs afresh, as it were, under s 69(2) and in conformity with cl 10 of the Practice Direction". 50 The applicant noted, however, that the situation in Geoform was slightly different because the Chief Judge was not being asked to concur with the Commissioner's decision and Pearlman J, correctly so, proceeded to determine costs in accordance with s 69(2) of the LEC Act. Nevertheless, the applicant submitted that Pearlman J's comments on the scope of the concurrence role remain pertinent: paragraph 4 of the applicant's supplementary submissions dated 12 December 2005. 51 The applicant submitted that where there is a risk that the discretion of the commissioner in determining an application for costs has miscarried, then the Chief Judge has to consider that submission. In doing so, the Chief Judge is not entitled to reopen the whole costs motion. If the Chief Judge determines that concurrence ought not to be granted, then the order of the Court becomes, in effect, that there be no order as to costs: paragraph 8 of the applicant's supplementary submissions dated 12 December 2005. 52 The Council submitted that, pursuant to s 69(8) of the LEC Act, the Chief Judge is not limited to a "yes or no" answer in determining whether to grant concurrence: paragraph 1 of the Council's supplementary submissions dated 20 December 2005. 53 The Council cited the observations of Pearlman J in Geoform Design Pty Ltd v Randwick City Council (1995) 87 LGERA 140 at 147 in support of the Council's argument that the Chief Judge is required to take into account all factors relevant to the exercise of a discretion as to whether to concur to the making of an order for costs under s 69(8) of the LEC Act: paragraph 2 of the Council's supplementary submissions dated 20 December 2005. 54 The Council submitted that whether the Chief Judge should grant concurrence to an order of a commissioner necessarily involves the question of whether the order has a proper legal basis: paragraph 4 of the Council's supplementary submissions dated 20 December 2005. 55 Council submitted that the Chief Judge's concurrence can be made conditional upon an alteration of the order proposed by the Commissioner: paragraph 5 of the Council's supplementary submissions dated 20 December 2005. There is nothing to prevent the Chief Judge granting concurrence conditionally in either the general law or s 22 of the LEC Act: paragraphs 5 and 6 of the Council's supplementary submissions dated 20 December 2005. 56 A condition of granting concurrence may be that the costs ordered by the commissioner are either expanded or contracted with the consequence that an order for costs is made although in different terms to that originally determined by the commissioner: paragraph 8 of the Council's supplementary submissions dated 20 December 2005. Exercise of concurrence in this case 57 I have determined on the facts of this case that the proposed orders by Commissioner Moore are appropriate and are ones with which I should grant concurrence under s 69(8) of the LEC Act. 58 In approaching the decision as to whether or not to grant concurrence, it is not appropriate that the Chief Judge undertake a review of the decision as if there is an appeal under s 56A of the LEC Act. The exercise of the power to grant concurrence does not require review for errors of law. It is not appropriate to review the Commissioner's reasons for decision, as the applicant submitted should be done, to ascertain whether the exercise of the discretion by the Commissioner miscarried by reason of the Commissioner failing to consider a relevant matter, namely the fact that the applicant was successful, or that the Commissioner misdirecting himself as to the terms of Part 16 rule 4 and the decisions of the High Court in Latoudis v Casey (1990) 170 CLR 534 and Oshlack v Richmond River Council (1998) 193 CLR 72. 59 The requirement to grant concurrence is directed to the proposed order, not the reasoning process by which the Commissioner arrived at the decision to make a proposed order. 60 The question whether the Chief Judge, in determining whether or not to grant concurrence, can do so conditionally, does not arise in this case and can be left for determination at another time. This is because I have determined that the proposed orders by Commissioner Moore are appropriate and are ones with which I should grant concurrence. 61 Commissioner Moore determined, as I have set out above, that the applicant should pay the Council's costs in relation to only two elements: first, the costs of the telephone callover on 2 May 2005, and secondly, the costs after 11 May 2004 of and in relation to the water supply and effluent treatment issues. 62 There is no contention by either party now that a cost order should be made in relation to the other two elements in respect of which the Council originally had sought costs, namely the landscaping issue and issues relating to the design of the intersection at the entrance to the site from the Princes Highway. 63 In relation to the costs of the telephone callover on 2 May 2005, in circumstances where that telephone callover was only rendered necessary by reason of the applicant's failure to comply with previous court directions, it is entirely appropriate that the applicant be ordered to pay such costs. 64 The Court, parties to proceedings in the Court, and the legal representatives of the parties, each have a duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings: see Part 1 rule 5A(1) of the Rules. The Court performs, in part, its duty by making appropriate directions and orders for the orderly, economic and efficient preparation and conduct of the proceedings. It is incumbent upon the parties, when such directions and orders are made by the Court, to comply strictly with those directions and orders: Part 1 rule 5A(3) of the Rules. The parties' legal representatives, both solicitors and barristers, are also obliged to ensure that their conduct does not cause their respective clients to be put in breach of the duty to comply with directions and orders of the Court: Part 1 rule 5A(4) of the Rules. The Court may, and indeed should, take into account a failure to comply by the parties and/or their legal representatives with these duties in exercising a discretion with respect to costs: Part 1 rule 5A(5) of the Rules. 65 In circumstances where the applicant failed to comply with directions and orders of the Court and such failure rendered it necessary to have a further telephone callover on 2 May 2005, it is appropriate that the Court order the applicant to pay the Council's costs of that telephone callover. The Council ought to be compensated for the costs it has incurred as a result of the applicant's breach of its duty to comply with the directions and orders of the Court. 66 In relation to the issue of water supply and effluent treatment, it is again the conduct of the applicant that has resulted in the Council incurring unnecessary expense. This time the conduct is in the applicant failing to provide, initially with its development application and subsequently at the commencement of proceedings, sufficient information to establish the adequacy of the water supply and the appropriateness of effluent treatment for the development. These were issues of central relevance to the development proposal, namely a tourist facility in an area with special landscape and scenic qualities. The information ought to have been an integral part of the development application. 67 The applicant was put on notice, both from the Council's statement of issued filed in the proceedings and the reasons for refusal in the notice of determination when issued, that the Council raised these issues. Yet the applicant did not act to address these issues until after the court-appointed expert stated that he agreed with the Council's position. Thereafter, the applicant submitted information and amended the application to establish an adequate water supply and appropriate effluent treatment for the proposed development. 68 This belated response by the applicant resulted in double-handling in assessment of and reporting on the issues by the court-appointed expert and by the Council in its dealings with the court-appointed expert. Such double-handling of the issues resulted in the court-appointed expert and the Council incurring additional costs. The double-handling and the concomitant double costs could have been avoided had the applicant provided sufficient information on the issues upfront at the appropriate time. 69 As noted above, courts have held that it is fair and reasonable that a party who, by its conduct in failing to provide or unreasonably delaying in providing information required by a development application or that is centrally relevant to the development the subject of the application, causes another party to incur unnecessary additional expense, should by paying costs compensate that other party for that unnecessary additional expense. 70 Commissioner Moore endeavoured to do this by proposing an order that the applicant pay the Council's costs for the second round of consideration of the issues by the court-appointed expert and the Council, but not making an order in relation to the first round of consideration. In this way, the Council would be compensated for the unnecessary additional expense it incurred in having to pay for a second time its portion of the court-appointed expert's fees for considering the issues and its dealing with the court-appointed expert. 71 I concur that it is fair and reasonable that the Council be compensated for the unnecessary additional expense it incurred in these circumstances. The approach of Commissioner Moore is one way in which this can be done. 72 It is not appropriate to go further, as the Council has submitted should be done, and require the applicant to pay all costs incurred by the Council in relation to these issues (that is for the period of the first consideration in addition to the period of the second consideration of the issues). If the applicant had provided the information in relation to the issues at the outset, there still would have been one set of consideration of the issues by the court-appointed expert and the Council. 73 In relation to the costs of the motion for costs, Commissioner Moore determined that each party should pay their own costs. Commissioner Moore did so on the basis that the Council had sought its costs in relation to four elements but had only succeeded in relation to two. Conversely, the applicant had disputed Council's entitlement to costs in relation to any of the four elements, but was only successful in relation to two. Commissioner Moore took the pragmatic approach that each party won two issues and each party lost two issues (both are "almost half successful") and that accordingly, there should be no order in relation to the costs of the motion: [21] of the judgment on costs. 74 Implicit in this reasoning is the approach that on a motion for costs, the usual order for costs should apply, which is that the successful party is entitled to its costs: Macdonald v Mosman Municipal Council (No. 2) (2000) 107 LGERA 211 at 215 [17]–216 [19]; Starray v Sydney City Council (2001) 112 LGERA 438 at 447 [55]; Ervin Mahrer & Partners v Strathfield Council (2002) 123 LGERA 24 at 41 [81]; Hutchison 3G Australia Pty Ltd v Waverley Council [2003] NSWLEC 449 (6 February 2003) at [21]; and Moodley v Botany Bay City Council [2004] NSWLEC 762 (17 June 2004) at [4]. 75 Commissioner Moore's assessment of the relative success of each party was open to him. I am not prepared to intervene in his decision. Conclusion 76 For these reasons, I grant concurrence to the orders proposed by Commissioner Moore that: 1. The applicant is to pay the respondent's costs in the sum of $3,778.75; and 2. The sum in order 1 is to be paid within 60 days of the date of these orders. ********** I certify that this and the 25 preceding pages are a true copy of the reasons for the judgment of The Honourable Justice B. J. Preston. ………………………… ………………………… Associate Date 22/02/2006 - Typographical error - Paragraph(s) 76 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.