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[2003] NSWLEC 357
Land and Environment Court (NSW)
2003-09-26
McClellan CJ, Clellan J
Original judgment source is linked above.
Introduction 1 HIS HONOUR: This is an application for security for costs brought by the first respondent in class 4 proceedings. 2 The applicant in the principal proceedings, Hunter Ecologically Sustainable Employment Group Inc, is a voluntary association. Some of objectives are: to increase the awareness of biodiversity in the Hunter Valley, to promote an understanding in the local community of natural resource and degradation issues, and, amongst other matters, to encourage interaction between the community and items of natural heritage in an ecologically sustainable manner. One of its activities is the conduct of discovery tours in conjunction with the National Parks and Wildlife Service. Those tours take participants to see rare plants and communities and to observe rare birds. The tours are commonly undertaken in the vicinity of the land the subject of these proceedings. 3 The applicant has also sought National Heritage Trust funding for school-based educational programs to raise awareness of the habitat value of remnant vegetation for locally-occurring endangered species, and of the past use of the land by indigenous culture. 4 The applicant has modest funds, the evidence indicating that as at 25 September 2003 it has a bank account balance of approximately $150. In the months preceding September, it has carried on fundraising activities and has raised monies in the order of $150 to $200 per month. Its bank account discloses that on occasions it has had cash resources of the order of $2,000 to $3,000. 5 The applicant has filed amended points of claim which disclose two fundamental challenges to a development consent granted to the first respondent. 6 In September 2002 a development application was lodged on behalf of the first respondent for the construction of stage 1 road infrastructure for an area know as the Hunter Employment Zone. The application sought consent for the construction of approximately 5.7 kilometres of public road, associated drainage works infrastructure and the clearing of vegetation. 7 At the time the development application was lodged with the Cessnock City Council there was a prospect, which was later confirmed, that the Hunter lowland red gum would be listed as an endangered ecological community under the Threatened Species Conservation Act 1995, by determination of the scientific community established by the Act. Accordingly, the development application was lodged with a document in the form of a Species Impact Statement. Such a statement would have been required by s 78A(8) if the determination had been made before the development application was made. 8 As it happened, the development application was not considered by Cessnock City Council until 19 December 2002. By that date the anticipated determination of the scientific community had been made and the Hunter lowland red gum had been finally determined as an endangered ecological community and included in the relevant schedule. 9 The applicant in its amended points of claim alleges that the development consent purportedly granted by the council is invalid. It is pleaded that because the form of Species Impact Statement provided with the application does not meet the requirements of the relevant regulations, the application could not found a valid development consent. 10 It is further pleaded that, as the consent is likely to significantly affect the Hunter lowland red gum, which by this time had been included in Pt 3 of the schedule to the Act, the concurrence of the Director General of National Parks and Wildlife was required pursuant to s 79B(3) of the Environmental Planning and Assessment Act before the council could grant a valid development consent. 11 Counsel accepts that the relevant community had been included on the schedule before the development consent was purportedly granted, however an issue in the proceeding is whether or not the proposal to construct the road, which involves the clearing of land and the construction of drainage and associated works, is likely to significantly affect the Hunter lowland red gum community in this location. 12 Counsel for the first respondent submitted that the applicant's case has little prospect of success because the Court should follow the decision of Pearlman CJ in Plumb v Penrith City Council & Or (2002) NSWLEC 223. In that case her Honour was required to consider the date upon which, in the course of consideration in a development application, it was necessary to determine whether there was likely to be a significant effect upon a threatened species. Her Honour found that this matter only required consideration on the date upon which the development application was made. 13 It is submitted as a consequence by the first respondent that if the circumstances change, as in the present case, so that the scientific committee determined that an endangered ecological community exists after the development application is made but before the development consent is granted, s 79B(3) does not operate. 14 Her Honour was not concerned in Plumb with the precise circumstances of the present case. My tentative view is that although in lodging a development application an applicant is required to comply with the obligation in s 78A(8), and if it fails to do so the consequence will be that there is not an application which can be considered by the council, the considerations which are relevant to the council's determination are not confined by the burden which s 78A imposes. 15 The considerations to which the council must have regard are provided variously in s 79 and s 80. Of relevance in the present case is the obligation for consultation and concurrence in relation to threatened species provided by s 79B(3). That obligation operates in relation to consideration of the development application and provides that before the decision-maker may grant consent in the present circumstances, it must obtain the concurrence of the Director General of National Parks and Wildlife. Consideration of the status of the land the subject of the consent must be undertaken at the time it is contemplated that consent be granted. Accordingly, if at that time an ecological community has been included in the schedule, development consent can only be granted with concurrence. It is irrelevant whether the community was included in the schedule at the date upon which the development application was made. 16 The first respondent submits that the approach adopted by her Honour in Plumb is confirmed having regard to the provisions of s 79B(5)(a) which provide that the Director General, in deciding whether or not to grant concurrence, is to take into account consideration of any Species Impact Statement that accompanied the development application. The submission made is that if at the time the development application was made a Species Impact Statement was not required because the relevant species had not been included in the schedule, the decision made thereafter, even if the relevant determination has been made by the scientific committee, need not have regard to the fact that the relevant species had since been included in the schedule. I have serious doubts as to whether or not this submission is correct, see Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614; (1975) 31 LGRA 416 and cases which have followed that decision. 17 Applications for security for costs in this Court have been the subject of considerable judicial discussion in recent times. Many cases are brought in this Court by impecunious applicants, often voluntary associations or some other community organisation concerned as to the lawfulness of a proposed development which may have a significant impact upon the built or natural environment. Because of the liberal standing provisions provided in s 123 of the Environmental Planning and Assessment Act, considerations which are unique to litigation in this Court often arise in relation to costs. 18 However, the court is required to apply conventional principles to applications for security and, accordingly, in many cases this Court has adopted the formulation by Beazley J in K P Cable Investments Pty Ltd v Meltglow Pty Limited (1995) 56 FCR 189 at 197-198. The considerations said to be relevant by her Honour may be conveniently summarised as:
(1) whether the application for security has been brought promptly; (2) the strength and bona fides of the case in which security is sought; (3) whether the impecuniosity of the applicant results from the respondents conduct the subject of the claim; (4) whether the application for security is oppressive in the sense of denying an impecunious citizen or organisation a right to litigate; (5) whether there are persons standing behind the plaintiff applicant who are likely to benefit and willing to provide the security; (6) whether persons standing behind the plaintiff applicant have offered any personal undertaking to be liable for the costs and if so the form of any such undertaking; and (7) whether the applicant for security is in substance the plaintiff or the proceedings are defensive in nature. 19 With respect to the first matter, it is accepted by the applicant in the proceedings that the first respondent brings this application with relevant expedition. 20 The case brought by the applicant, as I have indicated it, has been pleaded in two limbs. The position, as I have indicated, is that at the date that the relevant development consent was granted the Hunter lowland red gum had been included as an endangered ecological community in the list in Pt 3 of Sch 1 to the Threatened Species Conservation Act 1995. It is also accepted that the concurrence of the Director of National Parks and Wildlife was not granted before the council purported to grant development consent. The activity proposed to be undertaken is a major roadway through areas of forest and native vegetation. Plainly there will be a significant disturbance of that vegetation and the necessity for drainage and associated works if the road is to be constructed. 21 The evidence before me confirms, in my opinion, that the applicant in the proceedings has a strong case and I am satisfied brings the proceedings out of a genuine concern that the construction of the roadway will cause lasting damage to the immediate environment. 22 There remains an issue as to the significance of the impact upon the endangered community but the evidence presently before me does not enable me to form a full appreciation of the debate in relation to that matter. 23 The third matter addressed by Beazley J is not relevant to the present case. 24 With respect to the fourth matter this of course is the issue considered, amongst others, by the Court of Appeal in Melville v Craig Nowlan & Associates Pty Limited (2002) 54 NSWLR 82. In the present case evidence has been given, which the first respondent does not challenge, that if an order for security for costs were made against the applicant it is almost certain that the applicant would be unable to pursue this litigation any further. Heydon JA, who formed part of the majority in the Court of Appeal decision in Melville, drew attention to the fact that there may be other applicants who could bring proceedings in the event that a particular applicant could not continue due to an order for security. However, the present case brings other considerations into focus. 25 The applicant has been motivated to bring these proceedings not only by concern which others might hold in relation to the impact of the approved development on the environment but also because of its particular association with this area of bushland and the manner in which it is utilised for community activities designed to enhance an appreciation and understanding of the natural environment. 26 I do not overlook the fact that if the applicant fails in these proceedings, the evidence would suggest that it may be unable or indeed it is most likely to be unable to meet an order for costs made against it. 27 The fifth matter to which Beazley J drew attention was whether persons standing behind the applicant are likely to benefit and be willing to provide security. That factor has no relevance in the present case. 28 No other person has offered an undertaking and, accordingly, the sixth matter addressed by Beazley J must be answered in the negative. 29 The seventh matter to which her Honour addressed attention is also not relevant in this case. 30 As it is accepted that the first respondent has brought this application promptly, in my opinion the essential balance which I am required to reflect in the decision in this case is the fact that the applicant is plainly impecunious but has a special interest in the area of land the subject of the proceedings together with the strength of the case which it seeks to bring. Although I am not able to form an appreciation of the strength of the applicant's position in relation to the impact upon the environment, in my opinion it has a strong case in relation to the consequences of the inclusion of the Hunter lowland red gum in the schedule of endangered ecological communities. If red gum is to be removed by the construction of the road, then it would be unarguable that there will be an effect upon it. 31 The significance of that impact, however, would need to be determined. But as I have indicated, a substantial limb of the first respondent's defence to these proceedings is reliance upon the decision in Plumb and, as I have come to a tentative view that that decision cannot provide the foundation for the first respondent's defence, I am satisfied that in relation to the matters which I have discussed the applicant's case is strong. 32 In those circumstances I am not persuaded, but for one matter, that it is appropriate to make an order for security in favour of the first respondent. 33 The first respondent has raised the question of whether or not the present proceedings have been lawfully authorised by the Hunter Ecologically Sustainable Employment Group Inc. That matter was raised for the first time this morning and the solicitor for the Group seeks an opportunity to either clarify the present position or allow the Group an opportunity to consider whether or not it should take the step of making a resolution to remove any identity difficulty. 34 Rather than proceed to make a determination upon the assumption that the proceedings are not authorised, which might have consequences in relation to security but also in relation to the whole proceedings, I am satisfied it is appropriate to allow an adjournment for a short period so that the Group can consider that matter and inform both the first respondent and the Court of the actual position. **********
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Hunter Ecologically Sustainable Employment Group Inc.
HEZ Pty Limited & Ors
CITATION : Hunter Ecologically Sustainable Employment Group Inc. v HEZ Pty Limited & Ors [2003] NSWLEC 357 PARTIES : Hunter Ecologically Sustainable Employment Group Inc (Appl) HEZ Pty Limited (1R) FILE NUMBER(S) : 40325/03; 41046 of 2003 CORAM: McClellan CJ Practice and Procedure :- Security for costs Respondent seeking security from voluntary association which challenged development consent KEY ISSUES: Effect of decision in Plumb v Penrith City Council in relation to species impact statements Not appropriate to order security pending determination of whether proceedings lawfully authorised LEGISLATION CITED: Threatened Species Conservation Act 1995 Environmental Planning and Assessment Act Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614; 31 LGRA 416; CASES CITED: K P Cable Investments Pty Ltd v Meltglow Pty Limited (1995) 56 FCR 189; Melville v Craig Nowlon & Associates Pty Limited (2002) 54 NSWLR 82 ; Plumb v Penrith City Council & Or (2002) NSWLEC 223 DATES OF HEARING: 26 September 2003 EX TEMPORE JUDGMENT DATE : 09/26/2003
(1995) 56 FCR 189
(2002) 54 NSWLR 82