(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: