Grant v Kiama Municipal Council

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.

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)

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];

(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];

(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].

(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:

(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:

[1994] NSWLEC 122

[1996] NSWLEC 254

(2003) 129 LGERA 401

(1988) 130 LGERA 139

(2002) 123 LGERA 24

(2004) 133 LGERA 270

(2003) 131 LGERA 325

(2001) 116 LGERA 397

(2003) 124 LGERA 286

(1990) 170 CLR 534

(2000) 107 LGERA 211

(2002) 124 LGERA 393

(1998) 193 CLR 72

(2005) 138 LGERA 395

(2001) 112 LGERA 438

(1994) 84 LGERA 369

(1995) 87 LGERA 140

[2005] NSWLEC 291

[2001] NSWLEC 278

[2004] NSWLEC 762

[1998] NSWLEC 121

[2005] NSWLEC 673

[2005] NSWLEC 629

[2005] NSWLEC 124

[2005] NSWLEC 737

[2004] NSWLEC 732

[2006] NSWLEC 72