Friends of Malua Bay Inc v Perkins

EX TEMPORE Judgment 1On 14 July last, I determined proceedings brought by the Applicant in which it sought to set aside the decision of the Second Respondent, Eurobodalla Shire Council (the Council), to grant development consent to the First Respondent for development of land in Ridge Road Malua Bay to create a 30 lot subdivision. At that time the orders I made were that the summons be dismissed and costs reserved (Friends of Malua Bay Inc v Perkins [2014] NSWLEC 95). 2The successful Respondents each seek an order that the Applicant pay their costs of the proceedings. That order is opposed by the Applicant. It asks that no order for costs be made against it. In so doing it relies upon the provisions of r 4.2 of the Land and Environment Court Rules 2007 (NSW). That rule relevantly provides: 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." 3The proceedings that were instituted by the Applicant challenged the decision of the Council on two bases. First it claimed that the Council had acted in breach of cl 11(3) of the Eurobodalla Rural Local Environmental Plan 1987 (NSW) (LEP 1987) in that it failed to determine that the development for which consent was granted was consistent with the objectives of Zone 10 under LEP 1987. The subject land fell within that Zone. Second, the challenge was based upon the failure of the Council to consider matters that it was required to consider by reference to cl 23(2) of LEP 1987 or to have before it a statement relating to the likely environmental impact of development as was required by cl 23(3). 4It is to be noticed, as is recorded in the principal judgment, that at the time at which the Council granted development consent, LEP 1987 had been repealed by Eurobodalla Local Environmental Plan 2012 (NSW) (LEP 2012) so far as the former instrument related to the First Respondent's land. LEP 2012 zoned the land differently from the zoning, land use and development controls that applied to it at the time at which the development application was made. 5The combined effect of s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) is that, in proceedings of the present kind, costs follow the event unless the Court otherwise orders. However, both the section and r 42.1 operates only to the extent that they are not inconsistent with a rule of this Court (r 1.7 and Sch 2 of the UCPR). Rule 4.2 of this Court's Rules is such a rule. In order for the latter rule to be engaged, it is necessary that the Court be satisfied that the proceedings have been brought in the public interest. The onus of establishing that this is so rests upon the Applicant. 6A series of cases in this Court have laid down the principles or guidelines that should inform the application of r 4.2. Those principles attending departure from the usual rule because litigation is claimed to have been brought in the public interest are succinctly stated by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; 173 LGERA 280 at [13]. First, it is necessary to characterise the litigation in question as having been brought in the public interest. Secondly, if the litigation may be so characterised, it is then appropriate to consider whether there is "something more" than mere characterisation in that manner to justify application of the rule. Thirdly, it is necessary to consider whether there are countervailing circumstances speaking against departure from the usual rule that costs follow the event. 7These principles or guidelines have more recently been discussed and applied by Pepper J in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 3) [2013] NSWLEC 152. While containing a helpful summary of the principles and their application in a given case, reference to that case should not be taken to be an exhaustive reference to those cases in this Court that have discussed and applied the relevant principles derived from Caroona. 8The present Applicant seeks to address these principles in making the submissions that it does in reliance upon r 4.2. First it submits that the proceedings should be characterised as public interest proceedings because the public interest sought to be served by the litigation was protection of the natural environment. It further submits that inextricably linked to that interest is the upholding and enforcing of public obligations imposed by what is referred to as a public law or a law which imposes obligations upon a public authority. 9In support of its submission, the Applicant had proposed to rely upon an affidavit of Philip Simms sworn today. For reasons given in a separate oral judgment delivered during the course of evidence, I refused to allow the Applicant to read that affidavit. Although directions were made for the filing and service of written submissions as long ago as July and the Respondents had long since identified in their written submissions the absence of evidence to support a number of the submissions upon which they foreshadowed the Applicant would seek to rely (and upon which the Applicant did subsequently seek to rely), the affidavit of Mr Simms, in draft, was only provided to the Respondents yesterday. The delay in providing the affidavit, coupled with the prejudice that I was satisfied would be experienced by the Respondents in seeking to address that evidence at such short notice, a prejudice that could only be addressed by adjourning the hearing that had been fixed for today, at the Applicant's cost, essentially founded my reasons for refusing to allow the affidavit to be read. 10Apart from inferences properly to be drawn from the evidence received in the course of the substantive hearing, the Applicant tendered, without objection, and relied upon its certificate of incorporation together with three newsletters published by the Applicant after the proceedings had been commenced. This evidence demonstrated that the Applicant was not incorporated until 23 November 2012 and the present proceedings instituted in February 2013. The first newsletter that was tendered is a newsletter dated May 2013. Having reported the commencement by the Applicant of the present proceedings, beneath a photograph of what appears to be the frontage of the subject site to Ridge Road, the newsletter sets out what are said to be the goals of the Applicant's litigation. It does so in the following terms: "Our goals are clear: (1) Protect the ridge (2) Seek from Council and the developer alterations to the current development proposal that would see a more environmentally sustainable development that does not require the complete removal of the ridge. (3) Address the concerns of nearby residents who face many months of inconvenience through dust, noise and other health and safety concerns." 11That statement of goals needs to be read in the context of the opening paragraphs of that same newsletter. Those opening paragraphs relevantly state: "Friends of Malua Bay was formed and then incorporated in late 2012 by a group of Malua Bay residents and owners who are concerned with inappropriate developments within the local area. We are therefore concerned with the built environment (and also that which is proposed). This includes footpaths, kerbs and gutters that are missing; whilst also being concerned with maintaining environmentally strategically and significantly important natural formations such as timbered ridges, buffer zones, flora and fauna habitat as well the application of common sense." (Original emphasis.) 12The second newsletter that has been tendered was published in November 2013, more than 9 months after the proceedings had been commenced. In that newsletter it is said that the aims of the Applicant were: "* protection of Malua Bay Village from inappropriate coastal development * provide support and advocacy services to residents of Malua Bay Village in relation to development proposals" 13The third newsletter reports and discusses the decision given by the Court in these proceedings. That newsletter adds nothing of present relevance to the material upon which the Applicant relies. 14The Respondents (and in particular the Second Respondent) contend that the Applicant has not demonstrated that "the proceedings have been brought in the public interest", focusing upon the expression used in r 4.2. In response and in an endeavour to meet that submission, the Applicant points to three matters to contend that the proceedings were brought in the public interest. 15First, it points to the fact that the Applicant is named "Friends of Malua Bay Inc" and that it is an incorporated association. Second it refers to the goals as they are expressed in the first newsletter that I have just quoted and thirdly it asserts that the proceedings were brought essentially to protect the natural environment. I do not accept that these three matters either individually or considered collectively demonstrate that the proceedings have been brought in the public interest. 16The name of the association and its goals, the latter emerging only from the publication of a newsletter, seem to me to provide a very tenuous basis upon which to assert that the proceedings have the requisite characteristic. No minutes of the organisation have been produced, in particular no minutes have been produced establishing that a meeting or meetings of concerned individuals, however many there may be, were held prior to the commencement of proceedings so that the reason for commencing the proceedings might be identified. 17This is to be contrasted with the circumstances attending the commencement of proceedings demonstrated in the judgment of Pepper J in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd upon which the Applicant relies. In that case, there was a considerable body of evidence before her Honour from minutes of meetings of the applicant organisation up to the time of commencement of the proceedings, together with evidence from the organisation's public officer as to those matters in respect of which the organisation and its members had demonstrated interest over a number of years prior to the commencement of proceedings. This evidence was relied upon as a demonstration of the public interest represented by the organisation and as the rationale for commencement of the proceedings so as to categorise them as having been brought in the public interest. 18Relevant to the consideration of the Applicant's submission directed to what I might call the first component or first step in establishing an entitlement to invoke r 4.2 are the observations of Preston CJ in Caroona. Having summarised the three relevant steps to engage the public interest description at [13], his Honour said at [15]: "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." I interpolate that save for the assertion of an interest in preserving the natural environment, no other circumstance is identified by the Applicant in the present case that would justify departure from the usual costs rule. 19His Honour continued at [15] and following: " 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." 20In its written outline of submissions, the Applicant identified a number of matters that were said to be relevant to establish its position as a "public interest litigant", to the extent that the phrase is a shorthand manner of describing someone who invokes the operation of r 4.2. However, as the Second Respondent submits, reference in the Applicant's submissions to matters such as the Applicant's "primary concerns", its motivation in bringing the proceedings, its varied membership, its decision to commence proceedings and the assertion that the proceedings were not in fact brought to pursue private interests, are all matters that could have been, but were not, the subject of any evidence before the Court for the purpose of determining this costs application. While evidence given at the substantive hearing may enable some matters of that kind to be known or inferred, as the decided cases have made abundantly clear, the party seeking to rely upon the "dispensatory" provisions of r 4.2 bears the onus of establishing matters that would justify the application of that rule in the case at hand. It seems to me that the Applicant in the present case has failed to satisfy that onus. 21Moreover, despite the assertion that the proceedings were brought essentially to preserve the natural environment (constantly emphasised in the Applicant's submissions), neither evidence additional to that adduced in the substantive proceedings has been led to found that assertion nor does the bases upon which the proceedings were argued support such an inference. 22I have earlier identified the two provisions of LEP 1987 upon which the Applicant relied to found its case. It must be relevant to the determination of the initial question as to whether the proceedings have been brought in the public interest to identify the basis upon which the proceedings have been argued. Nowhere did I find in the submissions directed either to cl 11 or to cl 23 of that LEP any particular emphasis or, indeed, reference beyond passing reference to matters directed to the natural environment. Specifically, as I record in the principal judgment, the claimed breach of cl 11 sought to emphasise the failure of the Council to have directed itself, when determining that the application was consistent with the objectives of Zone 10, to those objectives expressed in paragraphs (i), (iii) and (iv) of Zone objective 10(b). Paragraph (i) is directed to the "impact of urban development on the physical environment" expressed in broad terms which, I accept, potentially includes, but is not confined to the natural environment. Paragraph (iii) is directed to the "range and pattern of land uses appropriate to the land" and paragraph (iv) identifies the need to consider "the limits of urban development within the urban expansion zone." 23In directing attention to what are said to be breaches of cl 23, the particular emphasis of the Applicant in its submissions, directed to a failure to consider 23(2), was the consequence of carrying out the proposed subdivision on the pattern of land use in the Zone. Only in the most tangential way would I have thought that a primary concern with the natural environment is engaged by consideration of that alleged breach. Likewise, in asserting a breach to cl 23(3) the particular emphasis was upon paragraph (a) of that subclause, namely the absence of any written document addressing impact of the proposed subdivision, emphasising "the relationship of the development to the pattern of land use of the surrounding land". 24As I have earlier recorded, at the time at which the Council granted the consent that was sought to be impugned, LEP 2012 had been made. That LEP imposed a zoning of R2 Low Density Residential on that part of the First Respondent's land fronting Ridge Road, while it sought to preserve, at least to an extent, the environmental characteristics of the land about which concern had been expressed in submissions to the Council, namely that which comprised the southern part of the subject site, by imposing an Environmental Living Zone or R4 Zone upon that land. It seemed to me that while the arguments that were advanced by the Applicant were certainly open to be made, ultimately the real grievance with the Council's determination of the development application, expressed with some precision in the objections made to the Council at that time, was with the manner in which the new zoning had been imposed on the land by LEP 2012. That grievance, however justified it may have been on merit, was a grievance that could not be entertained in the context of the present proceedings. Thus, the somewhat limited basis upon which the Applicant was able to make the challenge that it did. 25I recite those matters in an endeavour to demonstrate and support the conclusion I have reached that, despite the assertion that the primary focus of the litigation was upon preservation of the natural environment, none of the evidence before me either directly or by inference from the manner in which the proceedings were conducted, supported any such contention. No doubt it was open to the applicant to have adduced, in a timely manner, evidence directed to that topic, but in the absence of it, I cannot conclude that there is an evidentiary basis for the Applicant's contention. 26Against the possibility that I be wrong in concluding as I have indicated that the Applicant has not demonstrated that the proceedings meet the first of what I call the principles enunciated in Caroona, it is appropriate to observe that in seeking to establish the "something more", the Applicant could do no more than rely upon or rather repeat the assertion that the primary reason for bringing the proceedings was preservation of the natural environment. I accept, as would be obvious, that the land that is the subject of the Council's development consent, being the consent sought to be impugned, was land that was vegetated with a naturally forested riparian zone running across it. However, that of itself, does not establish that the purpose of the litigation was as enunciated by the Applicant. 27The fact that the proceedings may have been brought in order to ensure that the public law or the exercise of power under the public law to grant consent was properly undertaken, does not, of itself, distinguish these proceedings from any other proceedings that are brought under s 123 of the Environmental Planning and Assessment Act 1979 (NSW), seeking judicial review of a decision made by a consent authority. 28Further, in terms of "something more", while the list of matters satisfying that description is far from closed, those matters that have been identified as potentially demonstrating this element include proceedings raising a novel or previously undetermined question of environmental law, some important question that needs to be decided relevant to the administration of planning instruments generally or to a particular planning instrument, or the identification, by evidence, that the subject matter of the litigation is something that was worthy of protection, for example an important element of the ecology. No matters of that kind have presently been identified by evidence in a way sufficient to support "something more", as it is referred to in the authorities. I accept that in some cases there may be sufficient in the subject matter of the proceedings themselves or in the nature of the Applicant to justify the inference that "something more" is present. For example, significant representation by an Applicant in the sense that he, she or it represents a significant number of community members having a view about the subject matter of the proceedings. But none of that material is available to me in order to reach the decision that the Applicant seeks to have me make. 29For all those reasons, I am not persuaded that r 4.2 of the Land and Environment Court Rules should be applied in the present case as I am not satisfied that the proceedings have been brought in the public interest. As a consequence the ordinary rule earlier identified should be applied, that is, the combined effect of s 98 of the Civil Procedure Act and r 42.1 of the UCPR should govern the determination that I am required to make. No other basis upon which the Court should make an otherwise order has been invoked on behalf of the Applicant. Further, it should be recorded that the Applicant does not submit that if I reach the view that I have just expressed, an order should not be made in favour of both Respondents. The Applicant accepts that if an order is to be made that it pay costs, that order should apply to both Respondents. 30As a consequence, the orders that I make are as follows: (1)The Applicant pay the Respondents' costs of the proceedings, those costs to include the costs of the application for and hearing of this costs' application. (2)Exhibits tendered on the hearing of the costs' application may be returned.