Drake-Brockman v Minister for Planning & Anor

KEY ISSUES: Costs :- judicial review - public interest - whether usual order as to costs should be made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979

Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718; Drake-Brockman v the Minister Planning & Anor [2007] NSWLEC 490; Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365; Gray v The Minister for Planning (2006) 152 LGERA 258; Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271; Markisic v the Department of Community Services New South Wales (2006) NSWCA 106; CASES CITED: Oshlack v Richmond River Shire Council & Iron Gates Development Pty Ltd (1994) 82 LGERA 236; Oshlack v Richmond River Shire Council (1998) 193 CLR 72; Plumb v Penrith City Council and Another (2003) 126 LGERA 109; Project 28 Pty Limited v Barr (2005) NSWCA 240; Save the Ridge Inc v Commonwealth and Another (2006) 230 ALR 411; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254; South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114; Taralga Landscape Guardians Inc v Minister for Planning and Ors [2007] NSWLEC 59

APPLICANT Mr J Lazarus SOLICITORS Environmental Defenders' Office Ltd

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr J Kirk SOLICITORS Department of Planning

THIRD RESPONDENT Mr D Brigden, solicitor SOLICITORS Holding Redlich

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MINISTER FOR PLANNING First Respondent

FRASERS BROADWAY PTY LTD Third Respondent

JUDGMENT Jagot J: 1 On 13 August 2007 I delivered my principal reasons (Drake-Brockman v the Minister Planning & Anor [2007] NSWLEC 490) dismissing the applicant's challenge to the validity of the Minister for Planning's approval of the concept plan under Pt 3A of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2 The Minister and the third respondent have now applied for a costs order in their favour. The applicant opposed the making of any such order. The applicant acknowledged that the respondents were wholly successful and costs would ordinarily follow the event but submitted this was not an inflexible rule. The applicant also acknowledged that the label "public interest litigation" would be insufficient to displace the usual order as to costs. In the circumstances of this case, however, the interests of justice dictated that no order for costs be made. The relevant circumstances relied on by the applicant were as follows (as apparent from an affidavit sworn by the applicant and the written and oral submissions on his behalf). (1) The proceedings were brought in the public interest under the open standing provisions of the EPA Act. (2) The applicant had received funding assistance from an unincorporated association comprising residents of Chippendale and personal donations from 30 individuals and a fundraising event. (3) The applicant had nothing to gain personally from the proceedings other than perhaps vindication of his beliefs that all major new development should be subject to stringent controls to ensure greenhouse gas emissions are reduced to the greatest extent possible. (4) Climate change and conservation of water are issues of global environmental importance. See, for example, the observations in Taralga Landscape Guardians Inc v Minister for Planning and Ors [2007] NSWLEC 59 at [67]. (5) The applicant's case on each ground was clearly arguable with the applicant's motivation being to uphold the law. (6) The proceedings have assisted in clarifying the meaning of important provisions of the EPA Act. The provisions of Pt 3A considered in the principal decision were significant and the decision removed uncertainty about their operation. (7) The proceedings have assisted in clarifying how broadly the findings in Gray v The Minister for Planning (2006) 152 LGERA 258 applied. This was an important issue. Gray held that ecologically sustainable development was a mandatory relevant consideration for all matters under Pt 3A. This case raised whether the " Gray principles" apply to a concept plan and urban development. The third respondent had argued at length in the principal hearing that Gray was wrongly decided. Gray is a significant decision to the operation of Pt 3A and Pt 3A is itself significant to the operation of the EPA Act. Relevant considerations for this application not only relate to clarity for members of the public but also clarity about the operation of the statute to assist the Minister and the Director-General, as well as proponents of activities under Pt 3A. (8) The development is massive. It is in effect a new suburb of Sydney. The development includes a very substantial commercial component. This circumstance supports the public interest in the Minister's approval of this very large development being subject to judicial scrutiny.

3 The applicant submitted that the circumstances to which I have referred were similar to those that led the Court to decline making a costs order in Oshlack v Richmond River Shire Council & Iron Gates Development Pty Ltd (1994) 82 LGERA 236. This decision was upheld in Oshlack v Richmond River Shire Council (1998) 193 CLR 72. The applicant relied in particular on the observations of Kirby J in Oshlack with respect to routine costs orders potentially undermining the intention of the open standing provision in s 123 of the EPA Act (at [134]). The applicant also emphasised the decisions in Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365 and Plumb v Penrith City Council and Another (2003) 126 LGERA 109.

4 The respondents submitted that the tag "public interest litigation" is ambiguous and unhelpful. Insofar as it could be relevant it was for the Court not the applicant to characterise the proceedings. Even if satisfied that proceedings were brought in the public interest the Court must determine the appropriate exercise of discretion under s 69 of the Land and Environment Court Act 1979 having regard to the facts and circumstances of the particular case (see Kennedy v Director-General of the Department of Environment and Conservation [No 2] [2007] NSWLEC 271 at [10] - [13]). While the respondents accepted that the applicant had nothing to gain from the proceedings that fact was not uncommon in the Land and Environment Court, nor was it uncommon for an applicant in the Land and Environment Court to be motivated by desire to uphold the law. The capacity to use the open standing provisions comes with certain responsibilities. The reasons for this were identified in Markisic v the Department of Community Services New South Wales (2006) NSWCA 106 at [16] citing Project 28 Pty Limited v Barr (2005) NSWCA 240 at [112] where it was said: The adversarial system owes its form to its gradual and piecemeal development over centuries. The rules of the system have been produced by pragmatic reactions to a multiplicity of pressures over the centuries. They are interdependent and subtly influence each other. The system is effective by reason of its operation as a whole. One of its important features is the discipline imposed by the knowledge that an unsuccessful party is likely to be ordered to pay the costs of the successful party. This rule provides 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 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 a measured way.

5 The evidence about a broad community interest in the proceedings, the respondents submitted, was not persuasive. The Department sent out 6,929 letters about the development and received 54 submissions in response. Minor contributions to the cost of the proceedings by 30 or so people did not point to a wide interest. Whilst it is true that matters relating to climate change and water conservation are of general importance the respondents submitted that the applicant did not establish that the development would harm the environment. Moreover, if the Court takes note of those factors then why shouldn't other objectives of significant public concern (such as affordable housing and higher density residential development near the CBD and public transport routes) also be weighed in the balance?

6 The respondents said that the applicant's claims about clarification of the law were overstated. The applicant's claims were always substantially unmeritorious. The first two grounds were notably formalistic. The third ground foundered on the facts (see the principal decision at [129]). According to the respondents it should have been obvious that the Minister in fact considered ecologically sustainable development, including greenhouse gas emissions and water conservation. Further, reliance on Gray was misconceived. The issues fell for resolution by reference to established legal principles. Contrary to the applicant's submissions there are no "Gray principles". As found in the principal decision Gray turned on its own facts, as did this case. Gray, moreover, must be understood in accordance with orthodox principles and cannot extend the law with respect to mandatory relevant considerations. If it were otherwise Gray must be in error.

7 The respondents observed that this Court has considered greenhouse gases since at least 1994. That issue cannot and does not occupy a novel or unique position in the application of orthodox legal principles to judicial review claims. Accordingly, the respondents said that nothing in the circumstances displaced the usual principle that costs should follow the event. The applicant had failed to identify sufficient matters to enable that displacement.

8 Under s 69 of the Land and Environment Court Act costs are in the discretion of the Court but the discretion must be exercised judicially. Considerations of fairness usually mean that a successful party in litigation should be compensated for the expenses it has incurred. This has been described as an important principle (Oshlack 1998 193 CLR 72 at [67]). Courts have declined to make costs orders in certain matters where satisfied the proceedings have been brought in the public interest and where special or additional circumstances otherwise warrant a departure from the important principles of fairness embodied by the usual order as to costs. These decisions, some of which were relied upon by the applicant, also disclose the caution with which courts depart from the usual order as to costs (see, for example, Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254; Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718; Save the Ridge Inc v Commonwealth and Another (2006) 230 ALR 411; South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114).

9 Although I accept that the applicant had nothing to gain from the proceedings personally and wished for nothing more than to vindicate his view of what the EPA Act ought to have provided about climate change and ecologically sustainable development, the circumstances are not analogous to those considered in Oshlack, Engadine or Plumb.

10 First, while the applicant's submissions about climate change and water conservation being environmentally issues of global importance may readily be accepted, these proceedings did not and could not involve a review of the Minister's decision on the merits. The applicant was always limited to judicial review of the legality of the Minister's decision under the provisions of the EPA Act as in force, not as the applicant apparently believed they ought to be. In my view, two of the grounds of challenge warranted the description of highly formal and technical. The third (relating to ecologically sustainable development) turned on the facts of the particular case rather than any issue of principle, either environmental or legal.

11 Secondly, there was evidence in Oshlack and Plumb of a very high level of public scrutiny and interest in the dispute. The evidence in this case is far more equivocal. It would be wrong to equate a general and pressing public interest in ensuring that climate change and water conservation are addressed in environmental planning decisions with any widespread and pressing interest in the outcome of this particular matter.

12 Thirdly, Plumb and Engadine both concern provisions of the Act which were (in the particular context) of general importance and wholly or largely untested. The resolution of both cases required consideration of those provisions and yielded clarity about issues important to the general administration of environmental planning. I have considered the legal issues submitted by the applicant to have been clarified by the principal decision and the helpful submissions put on the applicant's behalf. On balance, however, I consider that the present case turned on the application of well-known and undisputed principles of construction and fact finding in the particular circumstances. While of interest and providing clarity in the general sense the case did not break any new ground as a matter of legal principle. In the circumstances it is not sufficient for the application to have involved consideration of relatively new provisions or clarify their operation. In short, I am not satisfied that the case involved issues reasonably capable of the description "novel of much general importance and some difficulty" (Save the Ridge at [12]).

13 Fourthly, although the matters raised were arguable it is by no means clear that they warrant the description "eminently arguable" as framed by Stein J in Oshlack (1994) 82 LGERA 236 at [245]. Insofar as this issue is relevant to the costs discretion, I have already said that on the facts of this particular case, and as argued by the applicant, the first two grounds were formal and difficult to reconcile with the terms of the statute. I do not accept the applicant's submissions to the contrary. The first argument related to a form not required by the statute, and the second (according to the applicant's own submissions) would have been addressed by a single additional sentence in the Director-General's report. In these circumstances the potential importance of the statutory provisions at a general level was not specifically related to the arguments actually raised on the facts of this case. The third ground turned on its facts. Contrary to the applicant's submissions it was reasonably clear that Gray did not support the ground of challenge as framed by the applicant. Moreover, it was also reasonably clear that the Minister had fairly extensive information before him about greenhouse gas issues and had taken that information into account. That is, it was reasonably clear that the matter would necessarily fall for resolution on its facts and not by reference to generalised ideas held by the applicant about what planning laws should provide for. If anything the applicant's affidavit adds weight to the impression that the applicant's concern was as much about testing his own views on appropriate standards for the assessment of development as vindication of the existing law. Hence, insofar as relevant these factors also do not suggest that it is appropriate to displace the usual order as to costs.

14 For these reasons I accept the submissions of the respondents that there are insufficient matters in the circumstances of this case that would warrant departure from the important principle of fairness that underlies the usual compensatory order as to costs. Accordingly, I order the applicant to pay the first and third respondents' costs of the proceedings as agreed or assessed.

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