(1) the litigation raises one or more novel issues of general importance;
(2) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law;
(3) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance;
(4) the litigation affects a significant section of the public; and
(5) there was no financial gain for the applicant in bringing the proceedings.
8 The applicant submits that categories 1, 2, 3 and 5 are satisfied as the case raised a novel issue in relation to the construction of s 75W of the EPA Act, the observations in the judgment on compliance with the Director-General's Environmental Assessment Requirements will assist in the future understanding of the application of Part 3A of the EPA Act, the case was brought to protect Aboriginal cultural heritage, which is of significant value and importance to Aboriginal people and the applicant did not stand to gain financially by bringing the proceedings. The applicant also submits that like the case of Oshlack v Richmond River Council (1994) 82 LGERA 236 the proceedings concerned "a publicly notorious site amidst continuing controversy" and the applicant had the worthy motive of seeking to uphold the law and protect Aboriginal cultural heritage and the environment.
9 The respondents submit that the proceedings do not involve "something more" as (a) the applicant's case failed on all grounds; (b) the applicant's case was an application for merits review clothed in various grounds of judicial review; (c) the grounds of challenge were untenable and at least some of them were hopeless. The first three grounds were highly unlikely to succeed in light of the material in the Director-General's Report, whilst the last ground of denial of procedural fairness was inherently flawed given that the applicant was personally notified of the modification requests and invited to comment; and (d) the proceedings did not raise any novel issues of general importance and will not contribute, in any material way, to the proper understanding, development or administration of the law. The grounds raised by the applicant were decided by reference to orthodox and established judicial review principles, many of which had been raised and dealt with in the prior proceedings involving the applicant's challenge to the Major Project Approval: Kennedy v NSW Minister for Planning [2010] NSWLEC 129.
10 I find in relation to the first, second and third grounds of challenge that they did constitute something more than the mere characterisation of the proceedings as being brought in the public interest. They highlighted important differences between the Part 3A modification approval regime and the Part 3A project approval regime and the modification provisions found in Part 4 of the EPA Act. They also highlighted that the public interest is a mandatory consideration in considering a modification request under s 75W of the EPA Act and that Aboriginal heritage and the protection of Aboriginal artefacts is an aspect of the public interest. The proceedings materially contributed to an understanding of the level of particularity to which the Minister must consider the public interest, including principles of ecologically sustainable development, which is an issue of general importance.
11 I find that the final two grounds of challenge do not satisfy the second step in the three step approach. Ground four was concerned with whether the Minister's decision was manifestly unreasonable. It was a very weak ground and was decided shortly by reference to well-established judicial review principles. The applicant's fifth ground, denial of procedural fairness, was doomed to fail given that the applicant was personally notified of the modification requests and invited to make a submission.
12 In relation to the third step, countervailing circumstances, Stockland submits that the applicant's failure to make a submission is an important consideration which suggests that the usual rule as to costs should apply. Stockland points out that instead of making a submission the applicant chose to commence proceedings challenging the Minister's decision. Stockland argues that there is no evidence of the applicant making any attempt to communicate his concerns with the respondents prior to commencement of the proceedings and the respondents were afforded no opportunity to address the applicant's concerns other than by defending the proceedings, which Stockland claims were in large part an attack on the merits of the Modification Approvals.
13 The applicant acknowledges that he did not make a submission in his personal capacity. However, the applicant points out that at the time he was the Chairperson of the Illawarra Aboriginal Land Council, which did make a submission that the applicant claims was ignored. According to the applicant he did participate but "again the power of the State, richly endowed developers and a regime of discriminatory laws has once again overwhelmed the aspirations of an Aboriginal person seeking protection of Aboriginal heritage".
14 In my opinion, even if the applicant did not make any submission on the proposed modifications, this is no countervailing circumstance which speaks against departure from the usual rule as to costs. A submission generally goes to the merits of a proposal, whereas the proceedings challenged the lawfulness of the Modification Approvals. If an applicant chooses not to comment on the merits of a proposal this should not preclude them from calling into question the legality of the proposal for fear of an adverse costs order. The merits and legality of a decision are two completely separate issues.
15 I acknowledge the respondents claim that much of the applicant's challenge was an attack on the merits of the Modification Approvals. However, while some merits issues were raised in the proceedings this was in the context of challenging the legal validity of the Modification Approvals.