Vigor Master Pty Limited v Warringah Council

[2006] NSWLEC 140

Land and Environment Court

of New South Wales

CITATION:	Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140
PARTIES:	APPLICANT Vigor Master Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	11009 of 2004
CORAM:	Preston CJ
KEY ISSUES:	Costs :- planning appeal - no cost order unless fair and reasonable - proposed costs order by Commissioner - concurrence of Chief Judge required - whether concurrence should be granted - conduct of party in raising an making submissions on question of law after hearing concluded and judgment reserved - no reason why question could not have been dealt with at hearing - hearing day added to deal with question - cost order in relation to such conduct fair and reasonable
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 97 Land and Environment Court Act 1979 (NSW) s 56A, s 69, s 69(8) Land and Environment Court Rules 1979 Pt 16 r4, Pt 16 r4(2)
CASES CITED:	Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414 (6 December 2004); Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 (15 June 2005) ; Geoform Design Pty Limited v Randwick City Council (1995) 87 LGERA 140; Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006); Manly Warringah Leagues Club Pty Limited v Warringah Council [2006] NSWLEC 88 (1 March 2006); Minnesota Nunung & Manufacturing Co v Biersdorf (Australia) Ltd (1979) 144 CLR 253; Mifsud v Campbell (1991) 21 NSWLR 725; Non-Drip Measure Co. Ltd v Stragers Ltd (1942) 59 RPC 1; PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 (10 February 2005); Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35 (11 February 2005); Vigor Master Pty Limited v Warringah Council (No. 2) [2005] NSWLEC 255 (19 May 2005)
DATES OF HEARING:	02/06/05 - applicant's written submissions 14/06/05 - respondent's written submissions
DATE OF JUDGMENT:	03/29/2006
LEGAL REPRESENTATIVES:	APPLICANT T F Robertson SC (barrister) SOLICITORS N/A RESPONDENT N D Howie (solicitor) SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

29 MARCH 2006

11009 OF 2004

VIGOR MASTER PTY LIMITED V WARRINGAH COUNCIL

JUDGMENT

1 HIS HONOUR: The respondent, Warringah Council (“the Council”), has been successful in defending Class 1 proceedings being an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) against the deemed refusal by the Council of the applicant’s development application.

2 The development proposed by the applicant, Vigor Master Pty Limited, was to erect a new dwelling at Lot 1093, DP752038 in Brooker Avenue, Beacon Hill.

3 On 11 February 2005, Commissioner Watts delivered judgment dismissing the appeal: Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35 (11 February 2005). Commissioner Watts held that the proposed development would “not maintain the likely desired future character of the B2 ‘Non-Urban’ land and would be contrary to the objective of the planning instrument to maintain the natural features of the land”: at [3].

4 The Council, by notice of motion dated 21 March 2005, sought orders that:

“1. The Applicant pay the Council’s costs with respect to the housing density issue (issues 1, 2 and 3) from 14 January 2005.
2. The Applicant pay the Council’s costs with respect to the Applicant’s notice of motion filed 19 January 2005.
3. The Applicant pay the amount of $5,044 to the firm of the court appointed planning expert Neustein Rosenberg Partnership.
4. Costs of this motion.”

5 Subsequently, it became common ground that the applicant had paid the court appointed expert’s fees. However, the Council still sought a proportion of the amount of fees that Council had paid to the court appointed expert, quantified at $1,000.

6 On 9 May 2005, Commissioner Watts heard the Council’s motion for costs.

7 On 19 May 2005, Commissioner Watts delivered judgment on costs: Vigor Master Pty Limited v Warringah Council (No. 2) [2005] NSWLEC 255 (19 May 2005). Commissioner Watts concluded:

“43. For the above reasons, I propose to seek the concurrence of the Chief Judge under s 69(8) of the Land and Environment Court Act 1979 to the making of the following costs order that the applicant pay the Council’s costs in the amount of $14,935 comprising:
In the amount of $6,000, with respect to the housing density issue (Issues 1, 2 and 3) accrued from 14 January 2005 to 11 February 2005 when the Court-appointed planning expert gave an oral report.
In the amount of $2,237, with respect to the applicant’s Notice of Motion filed 19 January 2005, which sought to vacate the hearing dates 27, 28 January 2005; to extend time for the filing of the applicant’s expert reports; and a separate and preliminary hearing on so-called questions of law relating to the housing density issue.
In the amount of $1,000, being part of the respondent’s share of the fees of the Court-appointed expert.
In the amount of $1,828, for re-opening of the hearing on 31 January 2005 to 3 February 2005.
In the amount of $3,750, for the costs of the costs motion 28 February 2005 to 9 May 2005.
In the amount of $120 for judgment attendance.”

8 The obligation to seek the concurrence of the Chief Judge follows from s 69(8) of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”). That section 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.

9 At the time Commissioner Watts determined the Council’s motion for costs, paragraph 10 of the Consolidated Practice Direction set out the procedure to be followed by a Commissioner in determining that a proposed order for costs should be made and for the making of 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.

10 Pursuant to the former Practice Direction, and as invited in paragraph 41 of Commissioner Watts’ judgment on costs, both parties have filed written submissions in relation to whether the Chief Judge should grant concurrence to the proposed costs orders.

11 The applicant’s written submissions, dated 2 June 2005, argued that the concurrence of the Chief Judge should not be granted to Commissioner Watts’ proposed costs orders and instead no order as to costs should be made.

12 The Council’s written submissions, dated 14 June 2005, argued that concurrence should be granted and, in addition, a further amount of costs of $1,500 should be awarded in relation to the Council responding to the applicant’s submissions to the Chief Judge on whether concurrence should be granted.

Relevant legislative provisions concerning costs

13 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, and
(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”.

14 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, 121ZM and 149F of the Environmental Planning and Assessment Act1979 …
(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 the particular case, fair and reasonable.”

Approach to costs in Class 1 proceedings

15 The approach embodied in Pt 16 r 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 particular case, fair and reasonable.

16 I summarised many of the circumstances where courts have considered it would be fair and reasonable to make an orders for costs in Class 1 proceedings in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006), [15]. The circumstance of discontinuance of a Class 1 appeal without the respondent’s consent may now be added to that summary: see Manly Warringah Rugby Leagues Club Pty Limited v Warringah Council [2006] NSWLEC 88 (1 March 2006) at [13].

Commissioners’ decision on costs

17 Commissioner Watts determined that an order for costs should be made in relation to a number of aspects of the proceedings, namely the issue of housing density, the reopening of the hearing on 3 February 2005, the applicant’s notice of motion filed 19 January 2005, part of the respondent’s share of the fees of the court appointed expert, the costs of the costs motion dated 21 March 2005, and for judgment attendance. I will deal with each of the aspects of the Commissioner’s decision.

18 First, Commissioner Watts determined that the applicant had acted unreasonably in that “much time was spent in Court going over the same ground and exploring in detail the meaning of the [housing] density provisions” in the relevant environmental planning instrument, Warringah Local Environmental Plan 2000 (“WLEP 2000”) as amended in December 2004: [27] of the costs judgment.

19 Commissioner Watts noted that the applicant had “fought an appeal on a neighbouring lot within the same holding” before another Commissioner of the Court one year earlier, in February/March 2004: [28]. Commissioner Watts presumed that the question of housing density would have been explained to the applicant by its legal representatives in that case: [28]. Commissioner Watts noted that the housing density provisions were clarified by an amendment to Clause 12(3)(b) of WLEP 2000, gazetted 3 December 2004, after that hearing: [28]. Commissioner Watts concluded at [31]:

“31. Were the present the only case pursued by the applicant in this area, the normal procedure that each party pay its own costs would apply. The difficulty in interpreting the WLEP 2000 would have been taken into account. Also the right of the applicant to test the density standard would have been seen to be reasonable. However, the applicant in the present case has pursued the housing density matter with a zeal that has resulted in the Council having to prepare and time taken in hearing days that is not normal. The applicant should have noted the strong independent opinions expressed by Mr Neustein and taken into account the import of the previous case and asked the question whether it is reasonable to pursue this case. I consider the applicant to be unreasonable in pursuing this case, taking the matter to trial and prolonging hearing time”.

20 The reference to Mr Neustein is a reference to the person who was appointed as the court appointed expert.

21 Commissioner Watts determined that the Council’s costs in relation to this aspect of the housing density issue should be in the amount of $6,000: [43].

22 Secondly, Commissioner Watts dealt with the Council’s submission that it was put to additional costs due to the applicant re-opening its case. Commissioner Watts accepted the Council’s submission that the applicant, by reopening its case after the hearing had concluded and after Commissioner Watts had reserved his judgment, unreasonably and unfairly put the Council to additional costs. Accordingly, Commissioner Watts concluded that the Council’s additional costs should be compensated: [33]. Commissioner Watts determined the costs should be in the amount of $1,828: [43].

23 Thirdly, Commissioner Watts accepted the Council’s submission that the Council should be compensated for its additional costs in relation to the applicant’s notice of motion dated 19 January 2005. That notice of motion sought to vacate the hearing dates for the merits appeal and sought instead to use one of those dates for a preliminary hearing of questions of law. On the hearing of the motion by the Court on 21 January 2005, the applicant withdrew its request for a vacation of the hearing dates for the merits appeal but still requested a hearing on the preliminary questions of law.

24 The Court declined to order a hearing on the preliminary questions of law and instead confirmed the hearing dates already fixed for the merits appeal and made directions for the filing and service of further expert reports. Commissioner Watts accepted the Council’s submission that the applicant’s notice of motion increased the costs of the Council in the proceedings without providing any procedural benefit to the Court or the parties. Commissioner Watts held that the Council’s additional costs in this regard should be compensated: [35]. Commissioner Watts determined these costs in the amount of $2,237: [43].

25 Fourthly, Commissioner Watts held that the Council should be compensated for a portion of the court appointed expert’s fees relating to the additional work required after the court appointed expert had addressed the housing density issue at the meeting with the applicant on 14 January 2005, when the court appointed expert gave his oral report: [36]. Commissioner Watts determined these costs in the amount of $1,000: [43].

26 Fifthly, because Commissioner Watts upheld the Council’s motion for costs, he also proposed an order that the applicant pay the Council’s costs of the costs motion in the amount of $3,750: [37] and [43].

27 Finally, Commissioner Watts awarded the Council an amount of $120 for judgment attendance: [43]. Commissioner Watts did not specify the judgment, the Council’s costs of attendance at which should be compensated. However, having regard to the fact that the Council specified the judgment on 11 February 2005 (see paragraph 38 of Commissioner Watts’ judgment on costs), it would appear that that is the judgment to which the Commissioner was referring.

28 The total of the amounts awarded for costs in relation to these different aspects is $14,935.

The applicant’s submissions to the Chief Judge

29 Mr T F Robertson SC made written submissions to the Chief Judge on behalf of the applicant. Mr Robertson did not appear at the hearing of either the merits appeal or the costs motion. Instead, Mr Henry Yu, a director of the applicant company, appeared on each of those occasions. Mr Robertson’s submissions included the following:

(a) Concurrence could not be given to a proposed decision that involves an error of law, a material error of fact or a miscarriage of discretion: [5] of the applicant’s written submissions of 2 June 2005..

(b) The power of concurrence under s 69(8) of the LEC Act should be liberally construed and not limited by implication. Subject to complying with procedural fairness, there is nothing in the general law which prevents the Chief Judge making his concurrence conditional upon an alteration in the order proposed by the Commissioner: [6], [7].

(c) The question at the heart of the merits appeal was whether the housing density development standard in WLEP 2000 could, consistently with a character statement, be varied: [8] – [10]. That question was difficult and open to different interpretations: [11]-[15]. The character statement raised a “circuity problem”: [9]-[11]. The amendment to cl 12 broke the “vicious circle” caused by the circuity problem: [13].

(d) Commissioner Watts was in error in concluding that the applicant should have known better due to the fact that it had previously litigated the housing density development standard in the earlier appeal. The standard was met in the earlier appeal because any question of its variation was irrelevant. Moreover, subsequent to that appeal, WLEP 2000 was amended with the consequence, Mr Robertson submitted, that the locality statement could no longer be read as a prohibition upon dwelling house development in breach of the standard: [16] and [19].

(e) Commissioner Watts’ finding that it was unreasonable for the applicant to pursue the case after the oral opinion by the court appointed expert had been given was in error. This ignores the fact that the appeal was against a deemed refusal. Before the Commissioner’s merits decision, the applicant had never received a determination of its development application. The appeal was a deemed refusal appeal. The Council did not decide the application thereafter. Mr Robertson asked rhetorically: “How can it ever be said that simply by pursuing (with zeal, presumably used in a pejorative sense) an appeal that the law entitles it to lodge to achieve a determination of its application to which it is entitled by law, by an independent tribunal with a legal duty to hear and determine the appeal, that it has acted unfairly and unreasonably? All it has done is exercise its legal rights to a merit determination of its development application”: [18].

(f) The fact that the applicant has pursued the issue of whether the development standard should be varied consistently with the intent of the locality with ‘zeal’ was irrelevant: [19].

(g) The fact that the applicant raised the question of consistency in the decision making of the Council in relation to development of other existing parcels was not an irrelevant consideration: [19].

(h) The fact that the court appointed expert expressed orally an opinion contrary to the argument that the applicant wished to put to the Court on the appeal is beside the point. If the matter was arguable, the applicant was entitled to argue it: [19].

(i) The late arrival of the applicant’s expert evidence from Mr Charles Hill was irrelevant unless the Council requested an adjournment to deal with it, which the Council did not: [19].

(j) There was no disentitling conduct of the applicant that would make it fair or reasonable to order costs. None of the steps taken by the applicant in the proceedings, including its zealous pursuit of an arguable case involving the difficult construction of an internally inconsistent planning instrument, resembled any established category of departure from the presumption that there should be no order for costs in Class1 proceedings: [20].

(k) The re-listing of the case on 3 February 2005 was necessary because of confusion concerning the service of the without prejudice conditions, not in order to reopen the case: [22] and [23]. The Commissioner failed to consider the applicant’s submissions to this effect: [22].

(l) The applicant’s motion to vacate the hearing dates was made in the belief that the Council still pressed an Aboriginal heritage issue and that a full Aboriginal archaeological survey was required but which had not been done and could not be done in time for the hearing of the appeal. When the Council informed the Court that the Council no longer pressed that the Aboriginal archaeological issue be determined during the hearing of the appeal, the applicant withdrew its application to vacate the hearing dates. The applicant made this submission to the Commissioner but he failed to deal with it: [26] and [27].

(m) In relation to the questions of law as to the power of the Court to vary the housing density development standard, the applicant indicated he would withdraw the appeal if he failed on the questions: [26]. The Court declined to order a preliminary question of law.

(n) Commissioner Watts’ proposed cost order in relation to the additional fees of the Court appointed expert after his oral report to the applicant was in error for the reasons given earlier. Further, to award costs against a party for raising questions concerning a court appointed expert’s report before the hearing of the matter by the court appointed expert sets a dangerous precedent. Parties should be encouraged to discuss concerns that they have with a view or position taken by a court appointed expert, especially where the party reasonably believes that the court appointed expert has been misled as to the legal position: [31]

(o) The applicant was entitled to remind the court appointed expert of the true legal position and to seek his opinion based upon that position and not upon an incorrect assumption concerning the law: [32]. Although the Commissioner held that the failure to provide the expert with the correct planning instrument was an irrelevant matter, it is explanatory of most of the proceedings for which the Commissioner has made an award of costs against the applicant: [38].

(p) The decision of the Commissioner to “mulct” the applicant in costs for challenging a planner’s opinion which was based upon an incorrect instrument (or which the applicant might reasonably believe was so based) is little short of extraordinary. No applicant is bound by a court appointed expert’s opinion. This is especially so where no determination of the application for development consent has ever been made: [46].

(q) At no stage did the proceedings depart for a consideration of the merits of the particular application, about which minds may reasonably differ: [47].

(r) If the applicant were acting unreasonably in the conduct of the proceedings, the Commissioner could have controlled the proceedings: [47].

30 For these reasons, the applicant submits that the Commissioner erred and that the proper order should be that there be no order as to costs of the proceedings.

The Council’s submissions to the Chief Judge

31 Mr Howie, solicitor, made written submissions on behalf of the Council arguing that the Chief Judge should grant concurrence to the proposed orders of Commissioner Watts. These submissions included:

(a) The applicant’s submissions wrongly assert that the central issue in the proceedings related to the interpretation of the desired future character for the B2 Oxford Falls locality and the housing density standards for that locality: [4] of the Council’s written submissions of 14 June 2005.

(b) The hearing before the Commissioner essentially related to the primary question of whether the Court should grant development consent for the proposed development of one dwelling on Lot 1093 of 2.8 hectares being a departure from the density housing standard of one dwelling per 20 hectares where it was common ground that the development of Lot 1093 did not constitute a permitted exception to the standard as an existing parcel of land, a variation agreed to be around 85%: [7].

(c) The proposed development did not constitute a development to the housing density development standard in that the subject land was not all the adjacent or adjoining land held in the same ownership on 8 March 1974: [8].

(d) The applicant did argue at the hearing on 27 and 28 January 2005 and at the adjourned hearing on 4 February 2005, that there was a circuity in the operation of the desired future character and the housing density development standard provisions because the desired future character was said to inflexibly incorporate conformity with the housing density standard: [15].

(e) The applicant further submitted at the hearing that the consequence was that the Court should disregard the departure from the housing density development standard in its consideration of the merits of the development: [16].

(f) The circuity argument raised by the applicant did not constitute the central issue nor did it occupy a major part of the hearing time or of the broad range of issues argued by the applicant: [17].

(g) The Commissioner noted in his appeal judgment (at paragraph 53) that the parties accepted that the thrust of cl 12(3)(b) of WLEP 2000 relating to consistency of the development with the desired future character is that the Court had a discretion to grant development consent: [18].

(h) Contrary to the applicant’s submissions (at paragraphs 9-13), there was no necessary circuity of reasoning in the operation of the provisions by the reference to the housing density standards in the desired future character. There was no consequent resolution of that perceived circuity by the amendment to cl 12(3)(b) of WLEP 2000: [22].

(i) The applicant’s submissions that the amendment broke the so called ‘vicious circle’ and removed the ‘catch 22’ clause (at paragraph 13) are submissions which were not advanced by the applicant at the hearing of either the appeal or the costs issue: [23].

(j) The Commissioner’s reasoning that the applicant’s conduct in relation to the density issue was unreasonable was correct: [24]-[39].

(k) The mere fact that the applicant was exercising its legal rights to a merit determination of its development application or that the Commissioner had a legal duty to hear and determine the appeal is no answer to whether the conduct of the applicant in pursing the appeal should justify an order for costs (see paragraph 15 of the applicant’s submissions): [38].

(l) The Commissioner was correct in his determination on the reopening of the case issue. The Commissioner should be taken impliedly to have considered the applicant’s submissions but rejected them: [41] and [49]. The issue that was listed before the Commissioner on the re-opening of the case on 3 February 2005, was not the issue of the late filing of the without prejudice conditions, but rather the issue of “clarification of the legal issue”. This is clear from the applicant’s letter of 1 February 2005 and from the 5 pages of written submissions addressing interpretation issues provided at the re-opening: [46]-[48].

(m) The Commissioner was correct in his reasoning on the costs of the notice of motion dated 19 January 2005. It is implicit that the Commissioner did not accept the applicant’s submissions: [50]. Whilst it is correct that the applicant no longer pressed for the vacation of the hearing date when the Council confirmed that an Aboriginal archaeological study could be deferred until after the hearing, the applicant still pressed to have questions of law decided on those dates as preliminary and separate questions. That application was declined: [51] and [52].

(n) The Commissioner’s proposed award in relation to the court appointed expert’s fees represented the amount which would have related to the court appointed expert’s attendance at Court being prolonged by the applicant raising issues going beyond those reasonably contested between the court appointed expert and the applicant’s expert in concurrent evidence: [54].

(o) There was no presumption or finding by the Commissioner, as suggested in paragraph 30 of the applicant’s submissions, that Mr Neustein’s oral opinion by itself included the applicant’s legal entitlement to a merit decision. Paragraph 26 of the costs judgment of the Commissioner makes it clear that the fact that the applicant did not withdraw after Mr Neustein explained his views on 14 January 2005 should not be seen as a reason alone in awarding costs in favour of the Council: [57].

(p) The Commissioner’s finding in paragraph 25 of the costs judgment is on the question of whether or not the Council supplied the correct version of WLEP 2000 with the amendment of cl 12(3)(b) adding the proviso, is irrelevant to his decision as to the questions of costs: [57]. The Commissioner also found at the hearing that Mr Neustein was quite clear as to the “import of the addendum” to that clause (paragraph 17 of the costs judgment at page 7.4): [58]. The applicant’s costs submissions do not demonstrate any reason why the Chief Judge would not accept those findings: [59].

(q) The Commissioner’s decision could not be characterised as being an order for costs against the applicant for the applicant’s conduct in simply electing to challenge Mr Neustein’s opinion. Nor can the decision be characterised as being based on a substitution of the opinion of Mr Neustein as the court appointed expert for the determination of the development application by the Council or the Court: [77]. The Commissioner was clearly of the view that the applicant had been over zealous in the presentation of its case and had acted unreasonably in pursuing the case prior to the hearing and prolonging the hearing time: [78].

(r) It is no answer to simply say as the applicant suggests (paragraph 47 at page 19.2) that the Commissioner should have limited the self represented applicant in its conduct of the case at the hearing. In this respect the Commissioner who heard the case is better able to make that assessment as to whether an order for costs is reasonable and fair: [80].

(s) The decision to award costs does not offend the principle that an applicant should have an opportunity for a hearing of its appeal without fear that, if it fails, it would be ordered to pay the Council’s costs (see Gee v Port Stephens Council (2003) 131 LGERA 325 at [40]) as asserted by the applicant’s submissions (at paragraph 47 at page 19.4): [81].

Exercise of power of concurrence in this case

32 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 of the Commissioner 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 of errors of law.

33 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.

34 The decision as to whether to grant concurrence under s 69(8) of the LEC Act involves taking into account the factors that are relevant to an exercise of a discretion as to whether to award costs under s 69(2) of the LEC Act: Geoform Design Pty Limited v Randwick City Council (1995) 87 LGERA 140 at 147.

35 I will deal with each of the aspects in respect of which Commissioner Watts proposed an order for costs.

Housing density issue

36 It is not necessary for me, in determining whether or not it is fair or reasonable to make an order for costs in relation to the housing density aspect, to decide the proper construction of the relevant provisions of WLEP 2000 relating to the housing density development standard and the desired future character of the locality. This is because the parties on the hearing of the appeal seem to have accepted, as did Commissioner Watts, that the effect of the relevant provisions was that the Court had a discretion to grant development consent regardless of whether or not there was any non-compliance with the housing density development standard: [53], [56] and [57] of the appeal judgment.

37 Commissioner Watts’ decision on the merit appeal turned on a merit determination, not a legal construction of the relevant provisions of WLEP 2000 that the development was prohibited. Commissioner Watts concluded that if the subject land were to be developed, it would remove native vegetation over the area of the footprint of the proposed dwelling as well as the areas that would need to be created for the purpose of asset protection zones. Such removal of native vegetation would not result in maintaining unchanged present character of the Oxford Falls Valley Locality. There were no exceptional circumstances that persuaded the Commissioner that part of the B2 zone should be built upon: [61] of the appeal judgment. Commissioner Watts also held that there would be a public benefit in maintaining the planning controls adopted by the plan under the B2 zone as a predominately non-urban area: [64] of the appeal judgment.

38 Hence, I do not need to determine whether Mr Robertson’s construction or Mr Howie’s construction of the relevant provisions of WLEP 2000 in relation to the desired future character and the density housing development standard is correct.

39 However, this conclusion also means that the proceedings retained their essential character of merits review. In the way the case was run by the parties, there was no issue put that the development was prohibited or that the Court had no power to grant consent notwithstanding non-compliance with the housing density development standard. The case, therefore, did not fall into the category of a Class 1 appeal that had ceased to have the character of merits review: see Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006): [15(a)] and cases therein cited.

40 Nor could the appeal be characterised as one where, properly advised, the applicant should have known that it had no chance or very poor prospects of success. Once it was accepted by the parties and by the Court that the Court had a discretion to grant consent to the development notwithstanding non-compliance with the housing density development standard, it could not be said that there was a legal bar to the applicant succeeding on the appeal. The applicant’s prospects turned solely on the evidence before the Court.

41 True it was that the court appointed expert was of the opinion that consent ought not to be granted because, inter alia, the proposal did not meet the desired future character for the locality. However, Mr Hill, the expert town planner called by the applicant, expressed a contrary view. Mr Hill considered that the proposed use would not be antipathetic to the desired future character statement for the locality. Mr Hill’s opinion was not accepted by Commissioner Watts but that does not mean that Mr Hill’s opinion was not reasonably open. Mr Hills’ evidence provided a reasonable evidentiary foundation upon which the applicant could rely in order to put its case that development consent should be granted to the proposed development.

42 Accordingly, the case did not fall into the category of a Class 1 appeal that had no chance or very poor prospects of success: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006): [15(f)] and cases cited therein.

43 This conclusion is not altered by the circumstance that the applicant had been party to an earlier appeal in relation to neighbouring land in the same holding. That earlier appeal did not result in any adjudication on the meaning or application of the relevant provisions in WLEP 2000 relating to the housing density standard and desired future character statement. There was no res judicata or issue estoppel.

44 The development proposed in that appeal would have complied with the housing density development standard because of the surrender by the applicant of an earlier consent for another dwelling. The provisions of WLEP 2000 were amended subsequent to the determination of that appeal, raising new issues of construction that needed to be addressed on the current appeal.

45 Furthermore, the appeal before Commissioner Watts was not run by either party on the basis that the earlier appeal had foreclosed or predetermined the construction or application of the provisions relevant to the housing density development standard and desired future character statement. As I have noted, both parties proceeded on the basis that the Court had power to grant consent notwithstanding non-compliance with the housing density development standard.

46 It cannot be said, therefore, that the applicant acted unreasonably in commencing or continuing the appeal in this case in circumstances where there had been an earlier appeal.

47 The conduct of the applicant in persevering with the hearing of the appeal after having receiving an unfavourable oral report by the court appointed expert was also not unreasonable. The parties’ common position was that the Court had a discretion to grant consent. The court appointed experts’ opinion was but one piece of evidence in that hearing. It was countered by the opinion of the applicant’s expert, Mr Hill. It was not unreasonable for the applicant to seek the adjudication by the Court of the issue, having regard to all of the competing expert evidence.

48 The appointment of a court appointed expert, in appropriate cases, does have advantages: it may reduce costs and ensure the Court has the benefit of evidence from a person who is not engaged by only one party: see: paragraph 2 of the Court’s Practice Direction: Court Appointed Experts. As Davies explains, the purpose of court appointed experts is to substitute for the adversarial battle of experts:

“…the opinion of one or more experts agreed by the parties or appointed by the court, who would express their views as court experts free of adversarial bias. It is thought that that will result in more objective expert evidence and a saving of time and cost”: G L Davies, “Civil justice reform: Why we need to question some basic assumptions”, CJQ 2006 25 (JAN), 32 at 44.

49 The elimination of adversarial bias and the consequent neutrality, as between the parties, of the expert evidence of a court appointed expert may give greater confidence to the Court in relying on the assistance of court appointed experts: G L Davies, “Current Issues – Expert Evidence: Court Appointed Experts”, CJQ 2004, 23 (OCT), 367 at 378.

50 However, this does not mean that the Court receives and considers only the evidence of a court appointed expert. There are occasions where the Court may be assisted by receiving and considering the evidence of another expert called by a party. This is what occurred in this case where the applicant was granted leave to call an expert in addition to the court appointed expert.

51 The evidence of a court appointed expert is, subject to the objection of any party, received as evidence in the proceedings along with other evidence. It is considered by the Court together with any other evidence relating to the relevant issues: paragraph 9 of the Court Practice Direction: Court Appointed Experts.

52 The obtaining of a court appointed expert’s evidence does not relieve the Court of its duty to consider all the evidence in the case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728D.

53 The Court’s duty is to look at the court appointed expert’s evidence and to obtain from it (with or without cross-examination) whatever assistance it can. This does not mean that the Court is bound to accept the report: Non-Drip Measure Co. Ltd v Strangers Ltd (1942) 59 RPC 1 at 24; Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd (1979) 144 CLR 253 at 269; Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414 (6 December 2004) at [54]; PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 (10 February 2005) at [31].

54 The Court is also a specialist tribunal. Where the Court determining a merit appeal is constituted by a commissioner who is an expert in a relevant discipline, the commissioner is entitled and expected to bring his or her own expertise and experience to the questions in issue. The commissioner’s task is not so much to decide which expert (the court appointed expert or the applicant’s expert) is right and which expert is wrong, but to derive what assistance the commissioner can from the experts in arriving at the commissioner’s own assessment: Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 (15 June 2005) at [43].

55 Accordingly, it was not unreasonable for the applicant to persevere with its appeal to a hearing, notwithstanding the adverse views expressed by the court appointed expert.

56 Finally, the conduct of the applicant at the hearing in the manner it pursued the housing density issue does not appear to be so unreasonable as to make it fair and reasonable to award costs in relation to that conduct. I accept that unreasonable conduct in litigating proceedings can provide a basis for awarding costs: see Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006): [15(d)(ii)].

57 However, I do not consider the conduct of the applicant in this case to be of this nature. Undoubtedly, the applicant, who was represented by its lay director, was slower and more repetitive in running its case than might have been the situation if the applicant had been legally represented at the appeal.

58 However, there does not seem to have been any objection by the Council at the time to the applicant’s conduct of its case at the hearingor any ruling made by the Commissioner at the time to curtail the applicant in its running of its case at the hearing.

59 The hearing was fixed for 2 days by consent of both parties and with the Court’s approval. It ran for 2 days, including a site inspection at Beacon Hill, some distance from the City. The fact that the actual hearing time corresponded with the estimate does not support a conclusion that the hearing was unnecessarily protracted by the applicant’s conduct.

60 It is true that there was an application to later reopen the case and this occurred on 3 February 2005. I will deal with this aspect below. The fact that there was a reopening on another day does not speak against the conclusion that the applicant’s running of its case at the hearing before the reopening could not be classified as having unnecessarily protracted the proceedings.

61 For these reasons, I find that there are no circumstances that would make it fair and reasonable to order costs in relation to the issue of housing density. I would not propose to grant concurrence to that aspect of the Commissioner’s proposed order for costs.

Applicant’s reopening of case

62 After the hearing had concluded, the applicant wrote to the Commissioner raising a question of law as to the meaning of the housing density provisions. In its letter of 31 January 2005, the applicant posed the question “Does any housing density variation can complying with the housing density standards in B2 Locality” [sic]. The applicant thereupon made some submissions in the letter as to how to answer the question.

63 Upon the Court receiving this letter, the proceedings were re-listed before Commissioner Watts on 3 February 2005. At the hearing on 3 February 2005, the applicant made further submissions in relation to the meaning of the housing density provision.

64 Whilst it seems correct to say that there was also some settlement of the without prejudice conditions at this hearing, this does not seem to be the principal reason for the applicant moving the Court. The applicant in his letter of 31 January 2005 opened by stating that the applicant “would like to serve you a draft condition which Council did not serve to you during the hearing, we have no objection to the condition being proposed by Council”. The draft conditions were then attached. Accordingly, there was no justification for a further hearing in relation to the conditions, agreement having been reached. It would have sufficed to have simply provided the conditions to the Commissioner.

65 Rather, the principal reason for the applicant moving the Court was to make further submissions on the meaning of the housing density provision.

66 No explanation has been provided by the applicant as to why it was necessary to do this. There is no suggestion that the applicant was not given ample opportunity to make these submissions before the conclusion of the hearing. There is no suggestion that there was a change of circumstances after the hearing or that new information had been discovered after the hearing, which could not reasonably have been discovered before the hearing.

67 The consequence is that the Council has been put to the costs of an additional hearing day unnecessarily.

68 In these circumstances I consider it is fair and reasonable to make an order for costs in relation to the additional and unnecessary attendance of the Council on 3 February 2005. The Commissioner has quantified these costs in the amount of $1, 828. There is no contest as to the quantum of these costs by the applicant. I consider the quantum to be reasonable.

69 Accordingly, I propose to concur with the Commissioner’s proposed order in relation to this aspect.

Applicant’s notice of motion for preliminary questions

70 The applicant moved the Court by notice of motion dated 19 January 2005 for orders:

“1. That all other expert reports are to be filed and served by 25 January 2005, be adjourned.
2. That the two day hearing date on 27 and 28 January, be adjourned.
3. That one day for question of law on either 27 or 28 January, be listed.”

71 The terms of this motion establish that the object to be achieved by the vacation of the merits hearing on 27 and 28 January was to enable a separate question of law to be determined in advance of the balance of issues in the case. In fact, the applicant raised a number of questions of law, but they all concerned the proper interpretation of the provisions relating to housing density in WLEP 2000 and their proper application to the facts of the case.

72 The Court declined to make an order separating these questions so that they could be dealt with in advance of the balance of the issues. However, it was not unreasonable for the applicant to move the Court to ask that those matters be dealt with as separate questions. Obviously, the key issues in the case revolved around the non-compliance of the proposed development with the housing density standard and with the desired future character of the locality, and the consequence of such non-compliances. The applicant recognised this and was seeking to have a determination on these aspects without having to embark on a hearing of the other aspects of the case.

73 The bringing by the applicant of a motion to achieve this result was not unreasonable and should be seen as part of the proper case management of a merits appeal. As a matter of fact, directions were made for the filing and service of evidence which were of utility in the preparation of the matter for the hearing. There was case management on the hearing of the applicant’s motion.

74 For these reasons, I do not consider the circumstances in relation to the notice of motion of 19 January 2005 make it fair or reasonable to make an order for costs. I do not propose to concur with this aspect of the Commissioner’s proposed orders.

Court appointed expert’s fees

75 For the reasons I have given above in relation to the housing density issue, there is no justification for ordering the applicant to pay for the Council’s share of the court appointed expert’s work (or the Council’s costs in relation to the court appointed expert’s work) after the court appointed expert delivered his oral report. The applicant did not act unreasonably in persevering to the hearing after receiving the court appointed expert’s oral report.

76 Further, the applicant did not act so unreasonably in its conduct of the hearing, including in its questioning of the court appointed expert at the hearing, so as to justify a costs order. The hearing went for its allocated time. I do not propose to concur with the Commissioner’s proposed order in relation to the court appointed expert’s costs.

Judgment attendance

77 Although the Commissioner does not state to which judgment the award for costs for judgment attendance relates, the Council’s costs breakdown suggests it is the appeal judgment delivered on 11 February 2005. I do not consider it is fair and reasonable for the Council to receive its costs in attending that judgment. That was the conclusion of the merits appeal and does not justify a separate costs award.

Motion for costs

78 The approach on a motion for costs is that the usual order for costs applies, that is, that the successful party is entitled to its costs: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006): [74] and cases cited therein.

79 In this case, for the reasons I have given above, I have concluded that an order for costs should be made only in respect of one aspect, namely the unnecessary additional hearing date of 3 February 2005. This is the only aspect in which the Council has been successful in its application for costs. The other aspects pursued by the Council are not sufficient to make it fair and reasonable to order costs. For the same reasons, the Council has been successful on its submissions in relation to concurrence of the Chief Judge only on the reopening of the case and not on the other aspects.

80 On the other hand, the success of the applicant in establishing that, in relation to these other aspects, it would not be fair and reasonable to order costs is in large part due to the detailed written submissions of its senior counsel provided on the occasion of the Chief Judge’s determination of whether to grant concurrence. These submissions were not made, or at least not made as effectively, to the Commissioner on the hearing for the motion for costs. If they had been provided to the Commissioner, it may well be that the Commissioner may have been persuaded not to propose an order for costs in relation to these other aspects.

81 In all the circumstances, the proper exercise of the discretion as to costs is that the Council should receive only part of its costs of the costs motion. I estimate one third to be a fair proportion. This equates to $1,250. I do not propose to award any further costs in relation to the submissions to the Chief Judge on concurrence.

The power to grant conditional concurrence

82 The power of concurrence under s 69(8) of the LEC Act is wide enough to permit the Chief Judge to grant concurrence to some aspects of orders proposed by a Commissioner but not others, and to vary other aspects.

83 Accordingly, I propose to grant concurrence under s 69(8) of the LEC Act to the following aspects of Commissioner Watts’ proposed orders:

(a) in relation to the Council’s costs of the reopening of the case on 3 February 2005, in the sum determined by the Commissioner of $1,828; and

(b) in relation to the Council’s costs of the costs motion, but with the variation that the sum should be reduced to $1,250.

84 The result is the applicant should pay the Council’s costs in the total amount of $3,078.

Conclusion

85 I grant concurrence under s 69(8) of the LEC Act to an order by Commissioner Watts that the applicant is to pay the respondent’s costs in the amount of $3,078.

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