(2) There was a strong public interest element in the claims and their resolution. The development application and development consent were ambiguous and not able to be understood by an ordinary member of the public. Development consents are public documents and should be able to be understood by all. The consent should have been sufficiently clear that any member of the public could read it and work out the clearing authorised. This is essential having regard to the public participation objects of the Environmental Planning and Assessment Act 1979 (the EPA Act). Section 123 contemplated that members of the public would be involved in ensuring compliance with consents. Clarity was the Council's responsibility. It was lacking in this case.
(3) There was also a strong public interest in the subject matter of the litigation - namely, the clearing of an admitted endangered ecological community. The scientific evidence in the proceedings disclosed that public interest.
(4) The circumstances in Kennedy were different. Talbot J had found that Mr Kennedy, to a large extent, was the author of his own misfortune.
(5) Mr Corowa's status an indigenous person was not itself a reason to decline to make an order for costs, but was nevertheless relevant. Encouraging access to justice by indigenous people was consistent with the objects and provisions of the EPA Act. Indigenous people should be encouraged to have involvement in the planning process, as the EPA Act contemplates for all people. This is particularly so in the context of issues involving endangered ecological communities, given the potential for impacts on indigenous lifestyles.
(6) The facts were very similar to those in Oshlack and disclosed that the proceedings had been brought in the public interest and involved special circumstances, having regard to the above matters.
(7) If successful in defending the respondents' claims for costs, the Court should order the respondents' to pay the applicant's costs for the hearing on costs. Further, as Geographe Point has abandoned its claim that Mr Oshlack be ordered personally to pay its costs, it should be ordered to indemnify Mr Oshlack for his costs in connection with that claim irrespective of the outcome of the respondents' applications for costs.