Bierman's won the right to continue operating at Rocky Heights in Smith's last November after the then Environment Minister had earlier decided to close the area so that it could be zoned as housing.

Lawyer Mr. Philip Holder, for the Minister, argued this week that the basic rule regarding costs where the Crown was a party, was that they did not pay or receive such costs unless there were special circumstances.

"The Minister is the regulatory authority who acts not in his own interests but acts on the part of the public as a whole,'' he said.

Mr. Holder added that, as a result, judgments could affect some landowners negatively but because the Minister did not have a personal interest in the proceedings, unlike normal parties in a civil case, the Crown was out of the realm of the ordinary citizen.

Bierman's lawyer, Mr. Mark Ray, pointed out that earlier in the trial Mr.

Holder had conceded that the Crown was in the same position as any other applicant.

But Mr. Holder said he was retracting that view and argued that the court had no jurisdiction to award indemnity costs, and that Bierman's had wasted a lot of time and caused unnecessary delays before the trial began.

"I wrote a letter dated July 28, 1990, where I asked for a statement of agreed upon facts. I never received this statement which would have encompassed much of the information in the affidavits and not wasted time.'' However, Mr. Ray said that upon receiving the letter he told Mr. Holder he had no problem with it, but he worried that it could be time consuming and a waste of money.

Mr. Ray said it was up to the court to decide whether costs should be awarded and that all proceedings against the Crown, except in very special circumstances, should be conducted as if the Crown were an ordinary subject.

"The court can give relief as the case may require. This is wide enough for the court to make an order against the Crown.'' Puisne Judge the Hon. Mrs. Justice Wade said she would hand down her decision in due course.