Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning

Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning - [2008] NSWLEC 272 - NSWLEC 2008 case summary — Zoe

[7]

Anderson v Ballina Shire Council [2006] NSWLEC 76 Anderson v Director-General, Department of Environment and Conservation (2006) 144 LGERA 43 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Anderson & Anor v Director-General of the Department of Climate Change & Anor [2008] NSWLEC 182 Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors [2008] NSWLEC 120 Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 Drake-Brockman v Minister for Planning (No 2) [2007] NSWLEC 777 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 Harvey v Minister Administering the Water Management Act 2000 (No 2) [2008] NSWLEC 213 Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy v Director-General of the National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Liversidge v Anderson [1942] AC 206 Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 Markisic v Department of Community Services NSW [2006] NSWCA 106 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 Minister for Planning v Walker [2008] NSWCA 224 Oshlack v Richmond River Council (1998) 193 CLR 72 Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 O'Sullivan v Farrer (1989) 168 CLR 210 Plumb v Penrith City Council (2003) 126 LGERA 109 Project 28 Pty Ltd v Barr [2005] NSWCA 240 Richmond River Council v Oshlack (1996) 39 NSWLR 622 Save the Ridge Inc (Association No A03329) v Commonwealth & Anor (2006) 230 ALR 411 (FC/FCA) Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 South Melbourne City Council v Hallam [No 2] (1994) 83 LGERA 307 South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 154 ALR 411 Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150

[21]

(3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to: (a) the injunction or order sought by the applicant, or (b) an undertaking offered by the respondent in response to the application, if it is satisfied that the proceedings have been brought in the public interest 7 By empowering the Court not to make an order for the payment of costs against an unsuccessful applicant, the new r 4.2(1) acknowledges that the usual "loser pays" costs rule is to the contrary. The usual rule is expressed in r 42.1 of the Uniform Civil Procedure Rules 2005, quoted at [5] above. The usual award of costs to the winner in civil litigation is made not to punish the loser but because it is just and reasonable, as between the parties, to compensate the winner by way of a partial indemnity against the expense to which the winner has been put by reason of the litigation: Latoudis v Casey (1990) 170 CLR 534 at 567; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 [67]. The indemnity is only partial because, ordinarily, costs are awarded not on an indemnity basis but on a party and party basis. The usual costs order has been said to provide "a bridle against lack of restraint in taking points that are hardly arguable or not arguable at all and against other possible excesses in the conduct of the litigation. It provides a measure of protection to those involved in litigation and to the Court itself against unscrupulous attempts to manipulate the system. It provides an incentive to act carefully in an measured way": Markisic v Department of Community Services NSW [2006] NSWCA 106 at [16], quoting Project 28 Pty Ltd v Barr [2005] NSWCA 240 at [112]. However, those considerations do not explain why the usual costs order is made against a losing party even it has almost won and has acted as a model litigant: Latoudis at 567, quoted in Thaina Town (on Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150 at [72] (CA).

[25]

11 The new LECR r 4.2(1) does not prescribe that, in addition to the public interest, there must be a factor leading to the conclusion that there are special circumstances justifying departure from the usual costs rule. Hence, such special circumstances are not a mandatory prerequisite to the exercise of the discretion to depart from the usual order as to costs in public interest cases. However, in my opinion, the discretion under the new rule is only enlivened if departure from the usual costs order is justified. The public interest consideration alone may be of such moment or magnitude as to ground that justification. An example might be an unsuccessful proceeding, based on a good arguable case, brought to stop or limit the development of one of the last habitats of an endangered species. In most cases, however, I expect it would also be necessary to establish special circumstances additional to the public interest in order to enliven the discretion. In such cases the practical application of the new rule would not be different from the pre-existing position. For example, in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 the case properly proceeded upon the common ground that special circumstances had to be shown. The public interest 12 What is meant by "the public interest"? The wide use of the concept in legislation and its meaning were analysed in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at [8] - [12] per Tamberlin J: [8] The reference to the public interest appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression.

[26]

[9] The expression in the public interest directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances. [10] The expression the public interest is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination. By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case. [11] The indeterminate nature of the concept of the public interest means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination. In this respect, the well-known observations of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion, however, the approach is relevant in the present case. His Honour said: In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. [12] The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that the public interest can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations. 13 "The public interest" is a nebulous concept unless given further content of a legally normative nature: Oshlack v Richmond River Council (1998) 193 CLR 72 at [30] per Gaudron and Gummow JJ. Much civil litigation concerns the public interest, including most constitutional and administrative law matters and some ordinary civil actions: Oshlack at [71] per McHugh J. If characterisation as public interest litigation were sufficient reason to depart from the usual order as to costs, that order would cease to be usual in large areas of litigation. The expression "in the public interest" requires a consideration of the subject matter, scope and purpose of the statutory enactment in which it is contained: O'Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

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14 There is no question that protection of the environment is a matter of public interest. Section 4 of the EPA Act defines "environment" broadly as including "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155 Mason CJ acknowledged "the public interest in avoiding injury to the environment". That proposition is illustrated by Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473. There a mining warden had recommended that an application for mining leases over 1,100 acres of Fraser Island be granted. That recommendation was a prerequisite to the granting of a mining lease. The warden was under a statutory duty to recommend that the application be refused if he was of the opinion that the public interest would be prejudicially affected by the granting of the application. At the hearing before the warden, an objector adduced expert evidence of damage to the environment that the mining was likely to cause. The High Court held unanimously that the warden had failed to hear the application according to law and ordered that a writ of mandamus be directed to him. Barwick CJ (Stephen and Murphy JJ agreeing) held at 480: "Clearly enough, the material evidenced by the appellant did relate to a public interest not limited to the interests of a less than significant section of the public". Jacobs J held at 487: The public interest is an indivisible concept. The interest of a section of the public is a public interest but the smallness of the section may affect the quantity or weight of the public interest so that it is outweighed by the public interest in having the mining operation proceed. It does not however affect the quality of that interest. The warden looked for what he described as the public interest as a whole and he did so in contradistinction to the interest of a section of the public. Moreover, he limited the area of public interest to the section of the public who propounded the views expressed by the objector. This was not permissible. The views may have been propounded by a section of the public but the matters raised went to the question of the interest of the public as a whole. The warden appears not to have given weight to the fact that the evidence produced by the objectors should be regarded as evidence on the public interest generally and needed to be weighed in all the circumstances of the public interest whether or not the evidence and the views therein were put forward by a large or a small section of the public. 15 In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [15] Lloyd J identified several matters that may be considered in determining whether proceedings can be categorised as having been brought in the public interest, as follows:

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19 First, the public has an interest in ensuring that government decision-makers are accountable, that their decisions are made in accordance with the law, and that legislation that creates public rights and duties is obeyed. These are interests which must be capable of protection when necessary, through litigation: see Australian Law Reform Commission Report No 78, "Beyond the Door-keeper: Standing to Sue for Public Remedies" (1996). 20 Secondly, third party enforcement of environmental laws is a key theme of the legislative reforms that created the Court in 1980. Open standing provisions in a number of Acts permit, indeed encourage, the public to bring proceedings to hold public bodies and others to account in this Court by way of an order to remedy or restrain a breach of the Acts or regulations: e.g. Environmental Planning and Assessment Act 1979 (EPA Act) s 123; Local Government Act 1993 s 674; Protection of the Environment Operations Act 1997 s 252; Threatened Species Conservation Act 1995 s 147; National Park and Wildlife Act 1974 s 176A; Heritage Act 1977 s 153; Fisheries Management Act 1994 s 282; Wilderness Act 1987 s 27; Native Vegetation Act 2003 s 41. Third party enforcement of environmental laws and participation in environmental decision-making was emphasised in the Second Reading Speech for the suite of legislation introduced in 1980, which included the Act that created this Court (Hansard, volume 150, p 3048): The bills will confer equal opportunity on all members of the community to participate in decision-making under the new legislation concerning the contents of environmental studies; the aims and objectives to be adopted by draft environmental planning instruments; the contents of draft planning instruments development applications requiring prior publicity before determination; development applications for designated developments; and environmental impact statements prepared and published in accordance with part V of the Environmental Planning and Assessment Bill. Additionally, objectors to applications for designated development can appeal to the Land and Environment Court against the grant of development consent. Members of the public are given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws.

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