Land and Environment Court of New South Wales CITATION : Harb v Wyong Shire Council [2005] NSWLEC 103 Steven Harb (Appl) PARTIES : Wyong Council (Resp) FILE NUMBER(S) : 10631 of 2004 CORAM: McClellan CJ KEY ISSUES: Costs :- Concurrence with the order for costs proposed by the Commissioners DATES OF HEARING: 25 January 2005 EX TEMPORE JUDGMENT DATE : 01/25/2005 M Fraser (Appl) Norman Waterhouse (Sol - Appl) LEGAL REPRESENTATIVES: P Clay (Resp) Abbott Tout (Sol - Resp) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES McCLELLAN J TUESDAY 25 JANUARY 2005 10631/04 HARB v WYONG SHIRE COUNCIL JUDGMENT 1 HIS HONOUR: This matter comes before me in relation to the question of whether or not I should concur with the order for costs proposed by the Commissioners. The matter has an unusual history which is recorded by the Commissioners in their reasons for decision. Critical to those reasons are two things, firstly the Council failed to disclose Development Control Plan 81 ("the DCP") to the applicant until the hearing had commenced. Unfortunately it had also failed to disclose the DCP to its own expert who was retained for the purpose of giving evidence in the proceedings. 2 If at that point the applicant had conceded that its application could not be approved, having regard to the constraints imposed by the DCP, in my opinion, the applicant would have had an irresistible argument that it should be compensated for the costs which had been unreasonably incurred by reason of the failure of the Council to disclose a relevant control. 3 However, the applicant did not take that course and the second matter of significance is that the applicant elected, notwithstanding the production of the DCP, to continue the proceedings and argue that the application should be approved notwithstanding the parameters imposed by the DCP. 4 In those circumstances, it is difficult to sustain a submission that the whole of the costs of the proceedings should be awarded to the applicant. In my opinion, the orders proposed by the Commissioners are appropriate and I concur in the Commissioners making those orders. 5 The Council seeks the costs of today's application. The Council has succeeded in the matter for the reasons that I have indicated and in my opinion it is both fair and reasonable that the Council receive an order for costs. 6 The Council seeks an order in the sum of $1200. In my opinion, $900 would be adequate compensation in the circumstances. Accordingly, I order the applicant to pay the Council's costs in the sum of $900. ********** 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.