Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd (No 2)

Cases Cited: Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249
Azzopardi v Gosford City Council (2002) 123 LGERA 118; [2002] NSWCA 234
Azzopardi v Gosford City Council (No 2) (2001) 119 LGERA 132; [2001] NSWLEC 283
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Briscoe-Hough v Minister for Local Government (No 5) [2025] NSWLEC 94
Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59
Darlinghurst Residents' Association v Elarosa Investments (No 3) (1992) 75 LGERA 214
Engadine Area Traffic Action Group Inc v Sutherland Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434
Friends of Bucketty Inc v Bucketty's Brewery Pty Ltd [2025] NSWLEC 101
Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd [2026] NSWLEC 118
Friends of King Edward Park v Newcastle City Council (2012) 194 LGERA 226; [2012] NSWLEC 113
Gunning Sustainable Development Association Inc v Upper Lachlan Council (2005) 138 LGERA 281; [2005] NSWLEC 23
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39
In the Matter of Cheat Industries Pty Ltd - Fitzpatrick v Cheat [2012] NSWSC 932
John Williams Neighbourhood Group v Minister for Planning (2011) 183 LGERA 327; [2011] NSWLEC 100
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Millers Point Fund Incorporated v Lendlease (Millers Point Fund) Pty Ltd (No 2) [2017] NSWLEC 29
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127
Sales-Cini v Wyong City Council [2009] NSWLEC 201
Tinda Creek Spiritual v Baulkham Hills Shire Council
and Environment Centre (1998) 100 LGERA 432

Category: Costs

Parties: Friends of Bucketty Incorporated (Applicant) Buckettys Brewery Pty Ltd (First Respondent) Nicholas Vernon McDonald (Second Respondent) Alexi Kathleen McDonald (Third Respondent) Cessnock City Council (Fourth Respondent)

Representation: Counsel:
N Hammond with B Collingwood (Applicant)
C Ireland (First, Second and Third Respondents)
Solicitors:
D Loether, Bartier Perry (Applicant)
RJ Wilcher, Keypoint Law (First, Second and Third Respondents)
JA McKelvey, Sparke Helmore Lawyers (Fourth Respondent)

File Number(s): 2025/00234848

Publication restriction: Nil

JUDGMENT

Introduction

1. On 11 September 2026, I handed down judgment in Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd [1] (the primary judgment). Subsequently, the applicant and the first, second and third respondents (the respondents) filed written submissions on the question of costs. The fourth respondent, Cessnock City Council (Council), entered a submitting appearance and did not file submissions either in the substantive proceedings or on the question of costs.

2. The respondents seek their costs of the proceedings jointly and severally against the applicant and Mr Simon Perry, the public officer of the applicant, on the ordinary basis. They say that they have been successful in the proceedings, and in relation to every ground raised by the applicant, [2] and that costs orders against the applicant, or Mr Perry if the applicant does not have sufficient funds to satisfy the costs order against it, would allow them to recover the significant costs of defending the litigation.

3. Here, however, the general rule is that if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs: r 42.1 of the Uniform Civil Procedure Rules 2005 (UCPR). This embodies the “important principles that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour”: Oshlack v Richmond River Council [3] (Oshlack) at [66] to [67] (McHugh J), also at [35], [134] (Gaudron, Gummow, and Kirby JJ); Northern Territory v Sangare [4] at [25] (Kiefel CJ). The applicant sought to rely on r 4.2(1) of the Land and Environment Court Rules 2007 (LEC Rules), which provides (emphasis added):

4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

4. The applicant submitted, uncontroversially, that r 1.7 of the UCPR, read in conjunction with Sch 2, provides that the LEC Rules are to prevail over the UCPR: Millers Point Fund Incorporated v Lendlease (Millers Point Fund*) Pty Ltd (No 2)* [5] (Millers Point) at [11] (Robson J). Rule 1.7 of the UCPR provides that “[t]he rules of the court specified in Schedule 2 prevail over these rules”. Schedule 2 provides relevantly that “local rules that prevail over these rules” include all rules in all Parts of the LEC Rules.

Respondents’ submissions

5. In relation to the question of whether the proceedings are public interest proceedings, the respondents noted that the applicant had not pleaded anywhere in the amended summons that these were public interest proceedings, and that this claim was not made in the security for costs proceedings before Pain J: Friends of Bucketty Inc v Bucketty's Brewery Pty Ltd [6] (security for costs judgment) at [23]. The pleaded case in the amended summons (at [17]) [7] was submitted to confirm that these were not public interest proceedings, but in truth proceedings the real aim of which was to preserve the existing residential amenity of its officers and members who are local residents. The applicant was submitted to fall within the second of the five categories of “so-called public interest groups” identified by Young JA (with whom McColl JA agreed) in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [8] (Hastings Point No 3) at [33] and [34], [9] that is, groups whose real aim is to preserve their existing amenity and are happy for the proposed development to proceed in another area. Young JA concluded that such an interest group would have great difficulty in avoiding a costs order on grounds that it was litigating in the public interest.

6. Likewise, the respondents submitted that the proceedings lacked the additional factors that led Biscoe J to characterise the proceedings before him in Friends of King Edward Park v Newcastle City Council [10] (Friends of King Edward Park) as proceedings brought in the public interest (at [63]). Here, there was no equivalent to issues concerning the protection of heritage, including Aboriginal heritage items, or the preservation of a reserve dedicated for public recreation which were central to that case. Rather, in this case, the members of the applicant did not want a pub and restaurant "in their backyard". They were concerned that the development would "alter the tone" of the locality of Bucketty. That litigation may also be said to raise some matters of public interest (not that the respondents accepted that any arose here) did not require a conclusion that the litigation is properly characterised as public interest litigation. [11] In addition, there was no evidence or assertion of any other factor in the nature of the "something more of the kind identified by Preston CJ of LEC in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [12] (Caroona Coal) at [53].

7. Further, there were submitted to be other circumstances relating to the applicant's conduct of the proceedings relevant to the exercise of the costs discretion. The applicant was submitted to have been “extraordinarily late” with its evidence “as was acknowledged at the case management hearing of 24 October 2025”. Its evidence was due on 15 August 2025, but had still not been provided by 24 October when the parties appeared before the Court. By that time, the respondents had served their evidence in chief. Whilst the respondents have a costs order in their favour in relation to that mention, the delays of the applicant necessitated a Court ordered affidavit of explanation from the solicitor for the applicant, dated 27 October 2025. Had the applicant been on time with its evidence, the respondents would not have incurred significant costs in compiling their evidence and could have avoided the cost of preparing its bundle of documents. Instead, they were “forced” to spend considerable time (and cost) compiling and preparing the transcripts of Council meetings and other public documents in their bundle of documents which were duplicated in the applicant's bundle. These delays led to costs incurred by the respondents “far beyond those captured by the existing costs order (which only give the respondents the costs of the directions mention on 24 October 2025)” for which the respondents would be compensated by a general costs order in the proceedings.

8. In relation to the costs they seek against Mr Perry, the respondents said that the applicant failed on all grounds to secure any relief of any kind, and that the Class 4 proceedings were dismissed in toto. Mr Perry was submitted to be the public officer and public voice of the organisation “who himself has a material personal interest in the proceedings being a local resident objector”. The respondents submitted that costs are able to be awarded against a third party who stands to benefit from the litigation, that Mr Perry's property is in the locality, and that he “was personally affected by what he objected to as adverse impacts of the proposal and wrote to the local press about the same”. The relevant legal principles were submitted to be set out in Knight v FP Special Assets Ltd [13] at 192 to 193 (Mason CJ and Deane J), and also in Tinda Creek Spiritual and Environment Centre v Baulkham Hills Shire Council [14] (Tinda Creek) where Sheahan J said at 442 of the tests to apply in deciding whether to make a personal costs order:

(1) Is the party an insolvent person or man of straw?

(2) Has the non-party played an active role in the conduct of the litigation?

(3) Has the non-party, or some person on whose behalf he or she is acting, or by whom he or she has been appointed, an interest in the subject of the litigation?

(4) If the above three tests are satisfied, do the interests of justice support or require that an order for costs be made against a non-party, on the basis he or she is the "real party".

9. As to (1), the respondents submitted that the issue was that the applicant may not be resourced sufficiently by its members to meet the amount of any costs order and might choose insolvency instead, it being an association with limited resources: security for costs judgment at [13] (Pain J). As to (2), Mr Perry’s affidavit at EB2956 was submitted to establish this factor. As to (3), Mr Perry was submitted to be a local property holder and resident of property in the locality of the development that he had represented to be adversely impacted by, and so had an interest “as an individual concerned with the effect of the development on his holding”. He also submitted to have a direct interest in the proceedings as the applicant’s public officer and objector to Council against the proposal. As to (4), the interests of justice were submitted to support the making of the costs order sought against Mr Perry “as only such an order will ensure the compensatory purpose of the costs jurisdiction is fulfilled”, Mr Perry was “the natural person embodiment of the applicant, being its sole public officer, a key deponent, objector putting arguments for the applicant against the development both in this Court, through submissions to Council, and in the local press”. This included a newspaper article in which Mr Perry wrote: “**[a]s a near three decade owner and resident of Bucketty I think this proposal will irrevocably and negatively alter the tone of Bucketty”.

10. The respondents accepted that the issue of the award of costs against Mr Perry is one of discretion, and submitted that in essence the question before the Court resolved into a single issue. As observed by Sheahan J in Tinda Creek at 449*:* *“*The question before the Court, therefore, is whether I am so convinced that the respondents ought to be compensated for their costs that in the interests of justice, the costs order should be made jointly and severally against Mr Diamond”. A joint and several costs order against Mr Perry was submitted to be in the interests of justice as it would “provide an incentive, otherwise lacking, for the defendant to get in funds sufficient to cover its cost liability”. It was in the interests of justice for the Court to ensure that the compensatory purpose of the costs order was not rendered futile by dint of the party subject to the costs order being an incorporated association.

Applicant’s submissions

11. The applicant submitted that the proceedings were brought by the applicant, an incorporated association with interest in general community matters, in the public interest. The requirement for "something more" to satisfy the Court that proceedings are brought in the public interest (Caroona Coal at [14] to [18]) was satisfied by “the facts and circumstances around the applicant and its case put in these proceedings”. The applicant had successfully argued that integrated development, for the purposes of Division 4.8 of the Environmental Planning and Assessment Act 1979 (EPA Act), was a matter of jurisdictional fact. The respondents were unsuccessful in its argument against this point. The ground also turned on a novel issue where the applicant for development consent elected to have the development application assessed as an integrated development ("the integrated box was ticked"), but the consent authority failed to assess it as such. The applicant submitted that authorities on integrated development had tended to involve the factual scenario where an applicant for development consent did not expressly elect to have the development application assessed as an integrated development ("the integrated box was not ticked"). The effect of the applicant’s argument on this point was submitted to have furthered the understanding of the law on a novel issue around integrated development, providing a benefit to the State of NSW as a whole, and clarifying the status of the integrated development regime under Division 4.8 of the EPA Act (is it an "opt-in / opt-out" regime?), and providing a significant benefit in terms of the furtherment of the law and public interest: Oshlack at [49] (McHugh J) and [136] (Kirby J). It also involved at least one novel issue of general importance: Oshlack at [49] (McHugh J), [144] (Kirby J).

12. The applicant submitted that there was a “much broader public interest in preserving the sensitive rural environment of the development site when contrasted against the private interests of a privately owned brewery”. In this respect, the proceedings would benefit a “public” extending beyond local residents and the members and supporters of the applicant: Millers Point at [26] (Robson J). As to whether proceedings were of "sufficient public interest", referring to Engadine Area Traffic Action Group Inc v Sutherland Council (No 2) [15] (Engadine) at [15] (Lloyd J), the applicant submitted that the public interest served by the proceedings included protection of the environment and of sensitive rural lands from land uses that Council had already deemed to be damaging to them; clarification of the law on integrated development under the EPA Act; protection of the local koala population from the potentially damaging effects of development; and the proper administration and determination of development applications by a local government authority such that its community has confidence in decision-making: Millers Point at [27]. The applicant was submitted to be an incorporated association occupied with multiple and various matters of general community interest on a local and regional scale, with motivations based on public interest matters and a membership and supporters spread throughout the Cessnock local government area and the wider Central Coast community. It sought to enforce public law obligations and to hold the respondents accountable to those obligations, and to uphold the public interest and the rule of law for the good of the Cessnock community. The applicant, and its members, did not have any pecuniary interest in the outcome of the proceedings.

13. Further, the applicant pursued the proceedings to ensure that the public interest was properly considered in light of the unsatisfactory nature of the development application and the potentially damaging environmental impacts of the development for which consent was granted (Caroona Coal at [30] to [36]), and the unsatisfactory nature of the assessment and determination of the development application by the fourth respondent which was “problematic and undermined confidence in the fourth respondent's role as consent authority”. The applicant did so by raising grounds which were all founded in particular concerns over the environmental impacts of the development and for the protection of a sensitive rural environment. It did not pursue any grounds that were clearly without merit or which could be considered unarguable: Darlinghurst Residents' Association v Elarosa Investments (No 3) [16] (Darlinghurst Residents' Association) at [216] (Stein J).

14. In relation to the respondents’ submission that the applicant failed to plead in the amended summons that the proceedings were brought in the public interest, the applicant submitted that it was not under any obligation to specifically “plead” that the proceedings were public interest proceedings. However, the “very nature of the applicant” and the “pleadings it did make” (which all related to matters of general law and environmental impact) demonstrated that the proceedings were public interest proceedings. Hastings Point No 3 was different from the subject proceedings and determined on their own distinguishable facts. The applicant in these proceedings would be characterised in the nature of Young JA’s first category in Hastings Point (No 3) as a genuine group of people whose sole interest is the protection of the environment in the Bucketty area and in the wider Cessnock region. The “something more” in the Caroona Coal sense includes the interpretation of the law, the impacts of development on prominent rural environmental issues and the proper administration of development applications. In Friends of King Edward Park Biscoe J at [63(f)] accepted that if members of the applicant living in close proximity to the development are motivated in part by a perspective of a local amenity impact, there can nonetheless be a broader public interest at stake.

15. In relation to the respondents’ complaint concerning the late service of evidence, the applicant rejected the submission that it was “extraordinarily late” with its evidence, and submitted that the complaint suggested the respondents seek their costs on this point “in a punitive manner”.

16. In relation to the respondents’ proposed costs order against Mr Perry, the applicant submitted that Mr Perry was not a party to the proceedings and not a “party” that would “benefit from the litigation”. Mr Perry did not own land adjoining the development site and had no pecuniary interest in the outcome of the development application or the proceedings. While Mr Perry submitted a written objection to the development application and provided evidence in the proceedings, he did so as a concerned member of the public and the applicant, troubled by the potential detrimental impacts of the proposed development on rural land. That did not, and should not, expose him to a personal costs order.

Consideration

17. I need not descend into a detailed examination of the circumstances surrounding the service of evidence by the applicant. To the extent that there was delay by the applicant, the respondents were compensated by a costs order at the mention before Pain J on 24 October 2025, and a Court ordered affidavit of explanation was provided by the applicant’s solicitor. The respondents provided no evidence demonstrating that the timing of service of the applicant’s evidence, either initially or in hard copy, caused any particular prejudice to them.

18. In relation to the costs order the respondents seek against Mr Perry, I accept as submitted by the applicant that while Mr Perry submitted a written objection to the development application and sought to provide an affidavit in the proceedings (to which the respondents objected and which affidavit I rejected), he did so as a concerned member of the public and the applicant. I find that Mr Perry was troubled by the potential detrimental impacts of the proposed development on rural land in the Bucketty locality and wider Cessnock area. That does not expose him to a personal costs order. Being a local resident objector concerned about the impacts of the proposed development is insufficient to elevate him to “the real party” in the litigation: Tinda Creek at 442.

19. The respondents did not make an application for security as to costs against Mr Perry personally when they made an application against the applicant in May 2025. I find that Mr Perry’s involvement with the applicant is distinguishable from the facts in Tinda Creek (applying Knight v FP Special Asset**s Ltd) where the applicant was found to be a “man of straw”, and the third party to be the “real party” bringing the proceedings. In Tinda Creek, Sheahan J concluded (at 448 to 449) that the evidence revealed that “virtually everything” about the company revolved around the third party who was in effect the litigant and who created the unincorporated community association to stand in front of him. Here, there was no evidence capable of supporting any such finding.

20. In the primary judgment at [41] to [42], I set out an extract from the transcript of a meeting of Council on 19 February 2025 in which an objector, Daniel Brugman, spoke to the elected members of Council about many of the issues which would become issues in the proceedings, including consideration of draft Cessnock Local Environmental Plan 2011 Amendment No 40 (Amendment No 40) and the potential of the land being core koala habitat within the meaning of s 3.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). Mr Brugman mentioned a Stephanie Carrick from the Sydney Koala Basin Project who he said had “confirmed that the development is located in a core Koala habitat”. It was in evidence (at [17]) that the Sydney Basin Koala Project sent a submission to Council saying that the land was “prime koala habitat”. At [43], I set out an extract from the transcript of the 19 February 2025 meeting in which an elected member of Council, Jessica Jurd, said that in the official submissions received by Council there were 16 community members for the proposal and 20 against, and that she had “over 100 emails” outside of the official submissions with 72 members of the community against the proposal. To the extent that the respondents sought to rely on paragraphs from an affidavit of Mr Perry at EB2956, the entirety of that affidavit was the subject of an objection by the respondents’ counsel which was upheld (Transcript, 11 March 2026, page 9, lines 24 to 25). Accordingly, I decline to make a personal costs order against Mr Perry.

21. In relation to whether the proceedings were brought in the public interest, in Millers Point, Robson J said at [22]:

[22] It is in the interests of justice that members of the public have access to the courts to remedy or restrain breaches of public law; see Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 238 per Stein J; Anderson (on behalf of Numbahjing Clan within Bundjalung Nation) v NSW Minister for Planning (No 2) (2008) 163 LGERA 132 at [19]-[20]. The cost of litigation is however often prohibitive, particularly in cases such as the present matter, where the respondents are corporations and government departments who are better resourced than the applicant. It is important, particularly for environmental matters, that cost is not a barrier in pursuing environmental justice and that important questions of law are able to be resolved by the Court. Rule 4.2(1) of the LEC Rules is reflective of this principle, and allows for applicants to bring significant issues of public interest to the Court.

22. To that end, Robson J adopted the three step approach set out by the chief judge in Caroona Coal.

23. In Briscoe-Hough v Minister for Local Government (No 5*)* [17] (Briscoe-Hough*)* Beasley J at [7] said that r 4.2 of the LEC Rules involves a two step process:

[7] Rule 4.2 involves a two-step process. First, the Court must determine whether Mr Briscoe-Hough brought his proceeding in the public interest, and secondly, if he has done so, whether or not the Court should exercise its discretion to make orders for the payment of costs against the unsuccessful party, which usually means having regard to countervailing considerations: Friends of Gardiner Park Inc v Bayside Council (No 2) [2022] NSWLEC 61 (Preston CJ) at [7]; Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 (‘Caroona’) at [14]-[18].

24. The three step approach identified by the chief judge in Caroona Coal at [15] to [17] for determining whether a matter is one to which r 4.2(1) of the LEC Rules applies was as follows:

[15] The first step sets the threshold. If the litigation cannot be characterised as being brought in the public interest, then obviously the public interest cannot be a circumstance justifying departure from the usual costs rule and any justification will need to be found in some other circumstance. If, however, the litigation can be characterised as being brought in the public interest, it becomes necessary to examine more closely the nature, extent and other features of the public interest involved in the particular litigation to ascertain whether they provide justification in the circumstances of the case for departure from the usual costs rule.

[16] This closer examination is required because the public interest is so broad that much litigation, in public law in particular, may be able to be characterised as being brought in the public interest. Characterisation of litigation as being brought in the public interest is too crude a criterion to enable the court to differentiate between the potentially large pool of matters that could be characterised as being brought in the public interest and identify those special matters where departure from the usual costs rule is justified.

[17] Hence, courts have held that something more than mere characterisation of the litigation as being brought in the public interest is required. This is the second step in the process.

25. And at [60], the chief judge said:

[60] With this background to the requirement of “something more”, what circumstances or factors have the courts identified that, when coupled with the characterisation of the litigation as being brought in the public interest, justify departure from the usual costs rule? The circumstances identified fall into at least five categories (references omitted):

(a) the litigation raises one or more novel issues of general importance …

(b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law …

(c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance …

(d) the litigation affects a significant section of the public …

(e) there was no financial gain for the applicant in bringing the proceedings ...

26. As Beasley J said in Briscoe-Hough at [12], the Court may further have regard to countervailing considerations that weigh against using the Court’s discretion to depart from the usual order. This analysis looks more closely at the conduct of the applicant, summarised in Caroona Coal at [61]. Here, the most relevant considerations include (references omitted):

[61] …

(d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications ...

(e) the applicant “unreasonably pursues or persists with points which have no merit”…

(f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation …

27. And as Beasley J said in Briscoe-Hough at [13]:

[13] The rationale behind r 4.2 and like provisions is to ensure access to justice is not cost barred and public interests are represented in courts, especially relating to environmental protection: Caroona at [30]-[36]. However, this must be counterbalanced against the successful party’s reasonable expectation of indemnification against expenses that it was forced to endure: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543.

Characterisation as public interest litigation

28. In the security for costs judgment, Pain J referred at [2] to the objects of the applicant specified in its constitution as follows:

Friends of Bucketty is a not-for-profit institution formed for the purpose of advancing the protection of the natural environment across the Bucketty bush community by helping to support land use sympathetic to and supportive of native flora and fauna diversity and health. The dominant purposes of Friends of Bucketty are the advancement of mental health and provision of relief from social isolation by encouraging and coordinating individuals to advance projects protective of the natural environment.

29. Her Honour said at [22] that:

[22] The objects of the Applicant are broad and refer to the purpose of advancing the protection of the natural environment across the Bucketty bush community by helping to support land use sympathetic to and supportive of native flora and fauna inter alia. The newspaper article in evidence refers to concerns by the local community about the clearing of vegetation resulting from the development proposed. The Respondents’ submissions sought to pigeonhole such concerns as ‘merely’ the protection of amenity for individuals but such concerns are also broader in nature.

30. I am satisfied here that there is a public interest in the protection of the environment in the Bucketty locality and the wider Cessnock region. The grounds in the amended summons were as follows:

31. Council failed to consider a mandatory consideration, namely Amendment No 40, pursuant to s 4.15(1)(a)(ii) of the EPA Act;

32. Council failed to consider the proposed development as integrated development pursuant to Division 4.8 of the EPA Act;

33. Council failed to notify the development application for 28 days as required for integrated development pursuant to cl 8A of Sch 1 to the EPA Act;

34. Council incorrectly characterised the proposed development and purported to grant consent for development that was prohibited development contrary to s 4.3 of the EPA Act;

35. Council misdirected itself and made an error of law in its application of Part 3.2 of Chapter 3 of the Biodiversity SEPP (in relation to koala habitat) and failed to properly apply the Biodiversity SEPP pursuant to s 4.15(1)(a)(i) of the EPA Act;

36. Council’s conclusions and decision in its consideration and application of the Biodiversity SEPP were legally unreasonable; and

37. Council failed to consider the submissions made on the notification of the development application pursuant to s 4.15(1)(d) of the EPA Act.

38. Whilst Mr Perry is the owner of a property in the Bucketty locality and in the locality of the development, and is a local resident objector, there is nothing in the scant evidence before me that Mr Perry individually or other members of the applicant individually, or the applicant generally, stand to benefit materially from the litigation. On the evidence before me, there is nothing which supports a finding that the applicant falls in the second category identified by Young JA in Hastings Point (No 3), that is, a group whose real aim is to preserve their existing amenities and are happy for the proposed development to proceed in another area. Rather, on the evidence before me, I find that the applicant is in the nature of the first category identified by Young JA, namely a genuine group of people whose main interest is the protection of the environment in the Bucketty area and the wider Cessnock region. As Biscoe J said in Friends of King Edward Park at [63(f)], that some members of an applicant living in close proximity to the development are motivated in part by a perspective of a local amenity impact, a broad public interest can nevertheless be at stake. There his Honour said:

[63] I am satisfied that the proceedings have been brought in the public interest having regard to the following:

…

(f) if members of the applicant living in close proximity to the development are motivated in part by a perspective of a local amenity impact, nevertheless there is a broad public interest at stake given that the Park is open to use by all members of the public, the dedicated purpose of the Reserve is public recreation, and given the heritage considerations. There is a distinction between the public interest nature of proceedings and the motives of an applicant. An applicant's motive may be influenced by local amenity impacts. But if there is also a broad public interest in the outcome of the proceedings, that is not diminished by the applicant's motive.

32. Here, I find as submitted by the applicant that “there is a much broader public interest in preserving the sensitive rural environment of the development site when contrasted against the private interests of a privately owned brewery”. In this respect, the proceedings stood to benefit a “public” extending beyond local residents and the members and supporters of the applicant: Millers Point at [26] (Robson J). As to whether the proceedings were of "sufficient public interest" (Engadine at [15] (Lloyd J)), I find that the public interest served by the proceedings included protection of the environment and of sensitive rural lands; clarification of the law on integrated development under the EPA Act; protection of the local koala population from potentially damaging effects of development; and the proper administration and determination of development applications by a local government authority such that its community has confidence in decision-making: Millers Point at [27].

33. In relation to the protection of the environment and sensitive rural land, while I ultimately found that Amendment No 40 was considered by the elected members of Council, I observed at [163] of the primary judgment that the Council officers who prepared the first and second assessment reports presented to the elected members of Council appeared to discard Amendment No 40 as irrelevant. Given the omission of any reference to Amendment No 40 in the section of the assessment reports dedicated to consideration of “proposed instruments”, it appeared that they thought it “erroneous”, in the words of counsel for the respondents, “for the Assessment Report to have referred to Amendment 40 as a proposed instrument” given that “Amendment 40 had been made and was in force”. At [157], I found that this approach advanced by the respondents was a misunderstanding of the approach required by the savings provision in cl 1.8A(2) of the Cessnock Local Environmental Plan 2011. The effect of that savings provision was to fictitiously set Amendment No 40 back to a time when it was a “proposed instrument”: Maygood Australia Pty Ltd v Willoughby City Council [18] at [29] (Pepper J).

34. In relation to the clarification of the law on integrated development and the proper determination of development applications and State approval applications, in the primary judgment at [103] to [110] I set out authorities in relation to the provisions in Div 4.8 of the EPA Act. [19] Those authorities were in some respects not entirely consistent. In particular, the statements of Lloyd J in Maule v Liporoni that the provisions concerning integrated development were “beneficial and facultative” (at [83]) and that there was “no compulsion on an applicant to make an application for an integrated development approval, if he or she chooses not to do so” (at [86]) were not on all fours with the approach taken by Sheahan J and the Court of Appeal (Handley JA, Foster AJA agreeing, Davies AJA dissenting on a different point) in the Azzopardi decisions. As noted by Talbot J in Gunning Sustainable at [69], Sheahan J and the Court of Appeal “appear to have proceeded on the basis that a development consent granted in respect of integrated development without first complying with the provisions of s 91A [now s 4.47 of the EPA Act] could lead to invalidity”.

35. In relation to the protection of the environment, the local Koala habitat and the proper determination of development applications by consent authorities, while I ultimately found that the elected members of Council were properly satisfied that the land was not core koala habitat and that this conclusion was not legally unreasonable, I observed at [229] that I had sympathy with the applicant’s submission that the reasoning of Council’s ecology officer was based on “irrelevant matters”. Council’s ecology officer did not base their assessment on the legal definition of core koala habitat in s 3.2 of the Biodiversity SEPP as an “area of land with a resident population of koalas, evidenced by attributes such as breeding females”, rather on the fact that there was “a lack of support from State Planning Authorities” after dismissing the flora and fauna assessment (looking for, inter alia, evidence of a resident koala population) undertaken by the respondents’ ecology expert because it had referred to the “incorrect Koala SEPP”.

36. While the applicant was ultimately unsuccessful, these were all issues of broader public interest extending beyond the interests of local residents and the members and supporters of the applicant, none of whom had any pecuniary or other material interest in the outcome of the proceedings. I am satisfied that the applicant sought to enforce public law obligations and to hold the respondents accountable to those obligations, and to uphold the public interest and the rule of law for the good of the Cessnock community.

Something more?

37. As to whether the proceedings involved “something more” than the mere characterisation as being in the public interest, in Friends of King Edward Park Biscoe J (in the interest of a security for costs application) held at [64] that there was something more in that case for the following reasons:

(a) the proceedings raise novel issues of general importance, particularly in terms of the operation of relevant provisions of the Crown Lands Act;

(b) the litigation should contribute materially to the proper understanding of provisions of the Crown Lands Act;

(c) the proceedings have been brought to protect the environmental and heritage values of the subject land which are of significant value and importance. The constitution of the applicant and the evidence of its President, Dr Ostinga, show that it was incorporated not solely for the purpose of the proceedings but to do something positive for the Park, raise funds and awareness for the Park and surrounds, assist the council to maintain the Park and monitor further commercialisation of the coastal reserve. On Dr Ostinga's evidence, questions arise as to whether sufficient consideration has been given to the significant early history of the site, including its convict and coal mining history, its importance as a defence site during the Second World War, its proximity to the original Newcastle Government House and Barracks, and its significance to the local Aboriginal people pre and post-settlement as a place for ceremony;

(d) the litigation affects a significant section of the public and not just nearby members of the applicant because it concerns the Park, which is a public park that all members of the public are entitled to access, and the Reserve whose dedicated purpose is public recreation. The case may be contrasted with a case where, for example, the applicant is purely concerned to preserve an existing private amenity such as a view from the applicant's home which would be obstructed by the proposed construction of a large building; and

(e) there is no financial gain for the applicant or its members in bringing these proceedings.

38. Here, I accept the applicant’s submission that the proceedings raised issues of general importance concerning whether integrated development for the purposes of Division 4.8 of the EPA Act is one of jurisdictional fact. The applicant was successful on that argument. As submitted by the applicant and set out above at [33], the effect of the applicant’s argument on this point furthered the understanding of the law on a novel issue in relation to integrated development, clarifying the status of the integrated development regime in Division 4.8 of the EPA Act (is it an "opt-in / opt-out" regime?), and providing a benefit in terms of the furtherment of the law and public interest: Oshlack at [49] (McHugh J) and [136], [134] (Kirby J). The applicant raised grounds in the amended summons which involved difficult questions of statutory construction and required sophisticated legal argument. The claim contributed to the proper understanding of the law: Millers Point per Robson J at [31] to [32].

39. The circumstances are distinguishable from those in Caroona Coal where the chief judge at [86] accepted that the case turned on the application of well-known and undisputed principles of statutory construction. In the circumstances, I am satisfied that the proceedings involved something more than mere characterisation as being in the public interest.

Countervailing considerations

40. Nor was there any evidence capable of establishing any countervailing considerations in the sense identified by the chief judge in Caroona Coal which weigh against using the Court's discretion to depart from the usual order. In particular, I do not consider that the question of public interest raised was one which only involved a discrete point of interpretation without broad ramifications. Nor do I consider that the applicant unreasonably pursued or persisted with points that were without merit (Darlinghurst Residents’ Association at 216 (Stein J)), or that there was any relevant disentitling conduct on the part of the applicant such as impropriety or unreasonableness in the conduct of litigation.

Conclusion and order

41. In all the circumstances, I am satisfied that the proceedings were brought in the public interest and that it is appropriate to exercise the discretion in r 4.2(1) of the LEC Rules not to make an order for the payment of costs by the applicant.

42. The Court orders:

43. Pursuant to r 4.2(1) of the LEC Rules, each party to pay their own costs of the proceedings.

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Endnotes

[2026] NSWLEC 118.

The applicant obtained a favourable finding in relation to their argument that the integrated development rules were jurisdictional. However, they lost on the ground to which that argument related (the integrated development ground, ground 2) having regard to the finding of jurisdictional fact (which was the analysis for which the respondents contended ([102] judgment) and the acceptance of the respondents' affidavits. That the respondents won a ground based on one of two alternative defences was submitted not to detract from the overall success, nor from the success on that ground, nor to create a “clearly dominant and separable issue” justifying even a partial no order as to costs on that issue: In the Matter of Cheat Industries Pty Ltd - Fitzpatrick v Cheat [2012] NSWSC 932 (Ward J) at [163]; also Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJ).

(1998) 193 CLR 72; [1998] HCA 11.

(2019) 265 CLR 164; [2019] HCA 25.

[2017] NSWLEC 29.

[2025] NSWLEC 101.

“The Applicant is made up of members including members who reside in and around Bucketty, and on land that is in the vicinity of the Land”.

(2010) 172 LGERA 157; [2010] NSWCA 39.

See also John Williams Neighbourhood Group v Minister for Planning (2011) 183 LGERA 327; [2011] NSWLEC 100 at [37] (Sheahan J).

(2012) 194 LGERA 226; [2012] NSWLEC 113.

Sales-Cini v Wyong City Council [2009] NSWLEC 201 at [60] (Pepper J), applying Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120 at [20] to [21] (Lloyd J).

(2010) 173 LGERA 280; [2010] NSWLEC 59 applied in John Williams Neighbourhood Group v Minister for Planning (2011) 183 LGERA 327; [2011] NSWLEC 100 at [48] (Sheahan J).

(1992) 174 CLR 178; [1992] HCA 28.

(1998) 100 LGERA 432.

(2004) 136 LGERA 365; [2004] NSWLEC 434.

(1992) 75 LGERA 214.

[2025] NSWLEC 94.

[2013] NSWLEC 142.

Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25; Azzopardi v Gosford City Council (No 2) (2001) 119 LGERA 132; [2001] NSWLEC 283; Azzopardi v Gosford City Council (2002) 123 LGERA 118; [2002] NSWCA 234 (together, the Azzopardi decisions); Gunning Sustainable Development Association Inc v Upper Lachlan Council (2005) 138 LGERA 281; [2005] NSWLEC 23 (Gunning Sustainable); Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127; Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249.