Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW

Land and Environment Court (NSW)|2019-10-01|Before: Pain J

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Save Little Beach Manly Foreshore Incorporated v Manly Council (2013) 198 LGERA 304; [2013] NSWLEC 155 Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 1129 Category: Costs Parties: Matter No 19/39988

Local Democracy Matters Incorporated (INC 1700616) (First Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent)

Waverley Council (Second Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent) Representation: COUNSEL: J Ryan, solicitor (First Applicant) P Clay SC and M Hall (Second Applicant) S Duggan and J McKelvey (First Respondent) M Astill (Second Respondent) R Beasley SC with M Ellicott and M Sherman (Third Respondent) Submitting appearance (Fourth Respondent)

SOLICITORS: Stringybark Legal (First Applicant) Wilshire Webb (Second Applicant) King & Wood Mallesons (First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent) Herbert Smith Freehills (Fourth Respondent) File Number(s): 19/39988; 19/43610

Local Democracy Matters Incorporated v Infrastructure NSW (Matter No 19/39988)

In Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20 (LDM No 2) I dismissed the applicant incorporated association's (LDM) judicial review proceedings. The usual costs rule in judicial review proceedings is that costs follow the event so that a losing party would generally pay the costs of a winning party in the absence of countervailing circumstances. The parties made conflicting submissions on appropriate costs orders. LDM submitted that each party should pay their own costs relying on r 4.2(1) of the Land and Environment Court Rules 2007 (LEC Rules). The three active respondents seek orders that LDM pay their costs. The Fourth Respondent (Lendlease Building Pty Ltd) filed a submitting appearance and made no submissions on costs.
Under challenge was the decision of the Minister for Planning, the Third Respondent, to approve a concept plan and Stage 1 works for the demolition of the Sydney Football Stadium (the SFS) at Moore Park Sydney. There were three unsuccessful grounds of judicial review argued. Firstly, the exhibition period for the concept plan was 28 days but should have been 30 days according to the now repealed cl 83 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Secondly, the Minister failed to consider design excellence as required by cl 6.21 of the Sydney Local Environmental Plan 2012 (SLEP). Thirdly, the operation of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) required consideration of contamination in a certain manner and this had not been complied with. Infrastructure NSW (INSW) a government agency subject to ministerial control under s 7 of the Infrastructure NSW Act 2011, was the First Respondent. Sydney Cricket and Sports Ground Trust (SCGT), a statutory corporation subject to ministerial control under s 5 of the Sydney Cricket and Sports Ground Trust Act 1978, was the Second Respondent.

Civil Procedure Act 2005

Section 98 of the Civil Procedure Act 2005 provides: Part 7 Judgments and orders … Division 2 Costs in proceedings 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. …

Uniform Civil Procedure Rules 2005

Rule 42.2 of the Uniform Civil Procedure Rules 2005 (UCPR) provides: Part 42 Costs Division 1 Entitlement to costs 42.2 General rule as to assessment of costs Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.

Land and Environment Court Rules 2007

Rule 4.2 of the LEC Rules provides: Part 4 Proceedings in Class 4 of the Court's jurisdiction … 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. …
According to Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 173 LGERA 280; [2010] NSWLEC 59 (Caroona) at [13] the application of r 4.2(1) of the LEC Rules requires satisfaction of a three-step test. Firstly, the litigation is characterised as having been brought in the public interest. Secondly, there is "something more" than the mere characterisation of the litigation as being brought in the public interest. Thirdly, there are no relevant countervailing circumstances to prevent departure from the usual costs order.
Considerations relevant to the first step include (Caroona at [38]): 1. the public interest served by the litigation; 2. whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area; 3. whether the applicant sought to enforce public law obligations; 4. whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and 5. whether the applicant has no pecuniary interest in the outcome of the proceedings.
Regarding the second step, circumstances that amount to "something more" include (Caroona at [60]): 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.
In relation to the third step, courts have found the following non-exhaustive factors to be countervailing circumstances (Caroona at [61]): 1. the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation; 2. where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation; 3. the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation; 4. the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications; 5. the applicant unreasonably pursues or persists with points which have no merit or issues that were not eminently arguable; and 6. there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation.

Affidavit of Ms Townsend read by INSW

Ms Townsend solicitor for INSW swore an affidavit dated 3 May 2019. Tab C of exhibit DJT-1 to the affidavit lists names of donors in relation to LDM's case listed on the "chuffed.org" website as at 11 March 2019. This list was produced in response to a notice to produce issued to LDM dated 8 March 2019 (tab A). Tab C also contains the minutes from LDM committee meetings dated 3 February 2019 (recording LDM's decision to initiate legal proceedings against INSW) and 6 March 2019 (recording LDM's decision to appeal LDM No 2). Mr Maltby attended these meetings and was previously deputy treasurer and treasurer of the Australian Greens (tab N) and is the current information technology and communications consultant for the Greens NSW (tab O). Tab D contains a list of the candidates from the Greens NSW seeking election at the NSW government election on 23 March 2019. Six of these candidates were listed as donors in tab C. Tabs E lists the Greens candidates for the 2019 NSW state election. Tabs F-J list the names of nine candidates for local council elections or elected local councillors representing the Greens NSW that were listed as donors in tab C. Tabs K-M indicate the names of three donors referred to in tab C who hold or have recently held membership or other positions with the Greens NSW. Tab P indicates that nine of the donors referred to in tab C made donations to the Greens NSW for the 2015 NSW state election. Tab R contains documents produced by LDM in response to a notice to produce dated 21 March 2019 (tab Q) including donation records for the "Stop The Stadium Demolition Fight Fund" by LDM. Tabs T and U contain transaction records for a bank account held by LDM produced in response to the notice to produce dated 21 March 2019. These show donations LDM received between February and March 2019 including $500 from the Waverley Greens on 12 February 2019. The file note in tab V lists names for the donors which are marked as "anonymous" in tab C and additional donations which appear to have been made after the date on which tab C was printed. One of the additional donors is a councillor of Randwick City Council representing the Greens NSW (see tab W). Two further additional donors are a Greens NSW MP in the NSW Parliament and a campaign assistant for this MP (tab Y).
Tab S of exhibit DJT-1 contains LDM's NSW Fair Trading "Form A2 Application for registration of an incorporated association" completed on 4 May 2017 by Mr Maltby. Part 6 of this form states that the objects of LDM are to: (a) Protect local democracy in the Woollahra, Waverley and Randwick local government areas, and (b) To encourage civic advocacy in support of local democracy amongst all residents in the Woollahra, Waverley and Randwick local government areas.
Part 7 of the form provides that the principal activity of LDM is "[s]ocial services/community association".
Tabs Z and AA of exhibit DJT-1 contain individual Facebook posts for LDM which relate to fundraising for the litigation conducted by LDM and indicate LDM's concerns with the proposal to demolish and rebuild the SFS.

Affidavits of Mr Maltby read by LDM

Mr Maltby treasurer and public officer of LDM swore an affidavit dated 5 February 2019 which was read in Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18 (LDM No 1) and LDM No 2 and relied on in the costs argument. LDM was incorporated in early 2017 to represent residents' concerns over the proposed amalgamations of local councils and issues of democracy and participation more generally in the Woollahra, Waverley and Randwick local government areas. The demolition of the SFS and construction of a new stadium affects residents of the Woollahra, Waverley and Randwick local government areas as the significantly larger stadium will be visible from all these local government areas. Residents of neighbouring local government areas will be impacted through the loss of open space and amenity. The decision to demolish a stadium with 45,000 seats to make way for a new stadium of the same scale at a potential total cost of $674 million lacks merit. Mr Maltby detailed the long process by which the Waverley and Randwick councils considered taking legal action against the demolition of the SFS.
Mr Maltby affirmed a second affidavit dated 16 April 2019 which was read. A register of members of LDM is annexed to this affidavit. The 34 members have addresses in the eastern suburbs of Sydney including Coogee, Bellevue Hill, Bondi, Edgecliff, Kensington and Maroubra. Mr Maltby stated that only one person had an address in Centennial Park and therefore could be said to live in close proximity to the SFS. A screenshot of a "Change.org" online petition titled "Stop NSW Government WASTING [sic] $2B Rebuilding SFS & Olympic Stadiums" is annexed to Mr Maltby's affidavit. This petition was signed by 222,900 people. Various online news articles covering the SFS demolition were also annexed including an article in the Sydney Morning Herald titled "Architect says doomed Sydney Football Stadium still 'world class'". The SFS opened 30 years ago and was designed by eminent Sydney architect Phillip Cox. Mr Maltby stated that LDM did not have any financial interest in initiating the litigation. LDM was motivated by issues of public policy which affected local democracy in and amenity of the eastern suburbs.
Mr Maltby affirmed a third affidavit dated 15 May 2019 that was read stating that he is a member of the Waverley Greens and is employed by the Greens NSW for seven hours per week as an information technologist. Mary Wilcox was the largest donor to LDM's case and she made clear to Mr Maltby in a conversation on or about 12 March 2019 that she is not a Greens NSW member or supporter. Exhibit DJT-1 to Ms Townsend's affidavit above at [10] identifies 82 individuals associated with LDM as members or donors or both. Exhibit DJT-1 to Ms Townsend's affidavit identifies 24 people associated with LDM who have links with the Greens NSW. These people constitute only 29 percent of the people identified as supporters of LDM by Ms Townsend. Tabs E and G of exhibit DJT-1 list the Greens NSW candidates for the 2019 NSW state election and the Greens NSW councillors respectively. The majority of these people are not members or supporters of LDM. LDM initiated proceedings out of concern that the Waverley and Randwick councils would be unable to file in time rather than for electoral purposes. Regarding the modest financial support ($500) provided to LDM by the Waverley Greens, the Waverley Greens frequently contribute to non-party political campaigns including the campaign to save the Sirius building in Sydney.

LDM's submissions

Each party should pay their costs pursuant to r 4.2(2) of the LEC Rules. Applying the factors referred to in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 (Caroona (CA)) at [38], the litigation was brought in the public interest for the following reasons.
Firstly, the public interest served by the litigation is illustrated by LDM being a not-for-profit community association (affidavit of Ms Townsend above at [11]) formed for the purposes of protecting local democracy in the Woollahra, Waverley and Randwick local government areas and encouraging civic advocacy in support of local democracy amongst all residents in these local government areas. "Protecting local democracy" can include a concern that the Minister for Planning properly applies planning legislation. "Civic advocacy" can encompass the taking of legal action under the open standing provisions of the Environmental Planning and Assessment Act 1979 to protect the urban environment and residents' ability to participate meaningfully in planning processes. LDM initiated proceedings to address local residents' concerns surrounding design excellence and contamination issues relating to the SFS development, and the impact that the development would have on loss of open space and amenity.
Secondly, the public interest is wide, involving a significant number of members of the public. The SFS development involves the demolition of a stadium with 45,000 seats with a new stadium of the same scale (affidavit of Mr Maltby dated 5 February 2019 at [14] above). An online petition protesting the Minister's decision to grant development consent had attracted over 222,000 signatures (affidavit of Mr Maltby dated 16 April 2019 at [15] above). The litigation attracted significant media interest, see the articles annexed to Mr Maltby's affidavit dated 16 April 2019.
Thirdly, LDM sought to uphold public law obligations and the rule of law. LDM in initiating proceedings was seeking to uphold, as it believed, the obligations of a state significant development to comply with public exhibition requirements, to provide design excellence and to be satisfied the contaminated site was suitable for the purpose for which it was ultimately destined to serve.
Fourthly, LDM had no pecuniary interest in the outcome of the proceedings. It was solely motivated by the public policy issues of the demolition of a 30 year old stadium for the purpose of replacing it with a stadium of the same size; the unknown (but expanded) design of the proposed replacement stadium and the loss of open space and parkland.
"Something more" than the mere categorisation of litigation as being in the public interest is required to justify departure from the usual costs rule: Caroona at [56]. The factors outlined in Caroona at [60] that indicate "something more" are applicable to the proceedings in this case.
Firstly, the litigation raised novel issues of general importance and contributed in a material way to the proper understanding and administration of planning law, particularly with respect to concept developments and their interactions with other environmental planning instruments. The litigation raised novel issues of law in Ground 1 which considered the effect of the now repealed cl 83 of the EPA Regulation. Those issues were not determined in LDM's favour. However the EPA Regulation remained in force during the exhibition period and created ambiguity.
Ground 2 considered the requirement of cl 6.21(3) of the SLEP for a consent authority to be satisfied that a concept plan displayed design excellence after considering the relevant aspects of cl 6.21(4). The judgment maintained the law established by Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 1129 (Uniting Church) that the decision-maker is required to be satisfied of design excellence at the concept stage yet these proceedings have provided a more refined guide on the relevance of factors in cl 6.21(4), where they are applicable and the level of generality which must apply to a concept development. The extent of material before the Court and the complexity of how it was considered in relation to a concept proposal has contributed to the understanding and administration of public law as it applies to concept development applications and the requirement to achieve design excellence (or other criteria) at the initial phase of approval.
The judgment's findings in relation to Ground 3 are significant in determining that cl 7(1) of SEPP 55 will have limited application to a concept development and has no application to demolition which does not affect the soil. The findings enable demolition to occur without requiring the site to be found to be suitable (with regard to soil contamination) for an accompanying concept plan, and for demolition to occur without engaging cl 7 of SEPP 55 at all. These assist in the understanding of and administration of the planning law in relation to concept developments, demolition and SEPP 55.
Secondly, the environment the proceedings sought to protect is of significant value and importance. The environment sought to be protected in public interest litigation can extend to an urban environment and include any factor which affects the amenity of persons within a locality: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39 (Hastings (No 3)) at [7] (Basten JA, McColl JA agreeing at [1]). The litigation sought orders declaring the Minister's decision to approve the concept plan and Stage 1 works invalid thus stopping until further re-consideration the demolition of the SFS. The SFS was only completed 30 years ago and was designed by eminent Sydney architect Phillip Cox (affidavit of Mr Maltby dated 16 April 2019 at [15] above). The cost of the new stadium was estimated to be $674 million (affidavit of Mr Maltby dated 5 February 2019 at [14] above). The importance of the SFS demolition as an issue is also evidenced by the number of people who signed the online petition and the media attention the litigation attracted (at [15] above).
Thirdly, there was no financial gain for LDM in bring proceedings for the reasons above at [21]. Further Mr Maltby's affidavit dated 16 April 2019 shows that only one LDM member has an address in Centennial Park and hence LDM was not pursuing through litigation commercial or personal property interests for its members.
There are no countervailing circumstances that prevent departure from the usual costs order since LDM did not stand to gain financially from the litigation; its members were not protecting private property interests; the litigation was initiated within time; and LDM was not supported by persons or entities who would benefit from the litigation.

Second Respondent (Sydney Cricket and Sports Ground Trust)

The Court could not be satisfied that "the proceedings have been brought in the public interest" under r 4.2 of the LEC Rules. In any event the Court should not exercise its discretion to depart from the general rule that costs follow the event. The Court should exercise caution in determining whether to characterise proceedings as public interest litigation and whether to exercise the discretion to depart from the general rule that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack) at [134] (Kirby J); Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 (Botany Bay City Council (No 2)) at [6]-[7]; Hastings (No 3) at [48] (Young JA); Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) (2016) 220 LGERA 73; [2016] NSWCA 375 (Hunter Development Corporation) at [69]; Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 3) [2013] NSWLEC 152 (Fullerton Cove) at [24].
The proceedings were not brought in the public interest. Firstly, in LDM's application to Fair Trading NSW to be established as an incorporated association (see [11] above) LDM provided that its principal activity was social services / community association. The boxes marked "[e]nvironment/ horticulture/animal protection" and "[l]egal, civic advocacy services" were not ticked as principal activities. The commencement of proceedings involving a challenge to the lawfulness of the granting of development consent is beyond the stated objects and principal activity of LDM. Further in Mr Maltby's affidavit dated 5 February 2019 above at [14] he stated that the true purpose of the incorporation of LDM was to represent residents' concerns over the proposed amalgamation of Woollahra, Randwick and Waverley councils. Such a purpose has nothing to do with the commencement of the proceedings. The mere fact that the objects of LDM were to "protect local democracy" and "encourage civic advocacy" does not support the conclusion that the proceedings should be classified as public interest litigation: Hunter Development Corporation at [69]. LDM adopted the model constitution when it incorporated itself. No changes have been made to the constitution of LDM, its principal activities and its objects.
Secondly, the mere fact that the subject matter of the proceedings may have been of interest to the public in the lead-up to the NSW Government election on 23 March 2019 does not of itself warrant the conclusion that these proceedings are public interest litigation: People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 (Santos) at [38]. In his affidavit dated 5 February 2019 above at [14] Mr Maltby stated that the motivation behind the proceedings was that LDM thought that the decision to demolish the old stadium and replace it with a new one "lacks merit". That motivation had nothing to do with the public interest in any environmental issue. Rather it represented the view of the self-appointed members and office bearers of LDM that its view was to be preferred to the elected government of the State as to the way the financial resources of the State should be expended. The proceedings themselves did not raise issues of public interest relating to the environment (see Santos at [37]). The proceedings concern technical and discrete issues about the application of statutory provisions to the particular facts in this case. There was no novel or new question of law being raised.
Thirdly, the proceedings were not without consequence for the members of LDM. The Court is entitled to look behind the legal structure of an incorporated association for the purpose of identifying in whose interests the proceedings may have been brought: Hastings (No 3) (Basten JA) at [11]. Representatives of the Greens NSW contributed funds to LDM (see affidavit of Ms Townsend above at [10]) and representatives of that organisation attended this Court during both these proceedings and the Court of Appeal proceedings and gave numerous lengthy press conferences which were widely reported in the media. The proceedings were instituted for political purposes in the lead up to the 23 March 2019 election. Further, the members of LDM live in and potentially own property in the Woollahra, Waverley and Randwick local government areas (see affidavit of Mr Maltby dated 16 April 2019 above at [15]). The members of LDM were concerned about the impact of the stadium redevelopment on the local amenity of these areas rather than the interests of the general public (affidavit of Mr Maltby dated 5 February 2019 above at [14]).
Even if the Court determines that the proceedings may be categorised as public interest litigation, LDM's proceedings do not involve "something more" so as to warrant a departure from the general costs rule. Firstly, the litigation did not raise novel issues of law. Ground 1 of the proceedings concerned a technical argument about whether the exhibition period for the development application should have been two days longer. Ground 2 merely concerned the application of the appropriate test outlined in Uniting Church to the particular facts of this case. It cannot be said that raising this ground contributed in any material way to the development or clarification of the law. This ground simply turned on the facts being whether there was evidence to establish that the Minister had formed the requisite opinion of satisfaction. Ground 3 involved a technical argument alleging that the Minister was required to consider whether the land including the subsoil was contaminated. The submissions concerned the construction of SEPP 55 in the context of a concept development application which is not a new or novel area of law. Although all grounds of review raised legal issues as to the construction of certain statutory provisions, those issues were decided largely on the particular facts of the case (see Santos at [41]).
Secondly, the first three grounds of review were not brought to protect the environment or some component of it of significant value and importance. Grounds 1 and 3 were based on technical arguments. Ground 2 was not of "significant" environmental value or importance (Caroona at [60]) because it was not alleged that matters of design excellence could not be achieved at the detailed design stage in the context of the subsequent development application that is required.
Thirdly, the grounds of review cannot be said to affect a "significant section of the public" as they are not directly concerned with environmental protection. The political ramifications of the validity of the development consent may be of wide public interest but this is not relevant to the Court's discretion.
Fourthly, while it may be argued that LDM as an incorporated association did not have any pecuniary interest in bringing the proceedings this is not a determinative factor: Santos at [39].
Even if the Court found that the proceedings involved "something more", there are countervailing circumstances that weigh against departing from the general costs rule. As above at [33]-[34] the grounds of review raised "discrete" and narrow questions of law "without broad ramifications": Caroona at [61]. The issues raised in the proceedings are far from a "test case": Oshlack at [137] (Kirby J). The points of law raised were particular to the decision making process in the factual circumstances of this case. They did not raise any questions that have broad ramifications for the development of environmental and planning law.

First Respondent (INSW)

INSW adopted the Second and Third Respondent's submissions and submitted that the usual costs order should be made.
The political motivation of LDM demonstrates that the proceedings were not brought in the public interest. Ms Townsend's affidavit above at [10] discloses that LDM has a number of members that are affiliated with the political party the Greens and is otherwise supported financially by a number of people affiliated with that party. Posts on LDM's Facebook page demonstrate that the primary consideration of LDM in bringing proceedings was political. They refer to the community wanting "schools not stadiums", putting the "decision on the stadium's future … in the hands of the people of NSW", and the NSW government being "determined to take the stadium decision out of the ballot box" (pp 415, 417 and 421 of exhibit DJT-1 to the affidavit of Ms Townsend). One post states "[d]on't forget to vote against the wasteful stadium demolition today!" (p 422 of exhibit DJT-1 to the affidavit of Ms Townsend). There are various references to the actions of members of the Liberal Party and the timing of the NSW election. The overall tenor of the Facebook posts is not directed to the protection of the environment but to the political process.
If the Court were to conclude that the proceedings were brought in the public interest the political benefit to LDM ought to be considered as a countervailing factor (per Caroona at [61]) which would lead the Court to refuse to exercise its costs discretion in LDM's favour. While such political benefit may not be a financial benefit to LDM in the sense contemplated in the non-exhaustive list of countervailing circumstances identified in Caroona at [61], it is nonetheless a material benefit of value to LDM that ought to weigh in favour of a costs order in favour of the respondents.

Third Respondent (Minister for Planning)

The usual costs order should be made. These proceedings should not be prima facie characterised as being in the public interest. Firstly, the high level of interest in the case by members of the public does not of itself warrant the conclusion that the proceedings were "public interest litigation": see eg Santos at [38]. Whether litigation bears a public interest character is not determined by the degree of public interest but objectively by the extent to which it serves the public interest: Jacob v Save Beeliar Wetlands (Inc) (2016) LGERA 201; [2016] WASCA 126 at [39] cited in Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 4) [2019] NSWLEC 56 (Muswellbrook) at [59]. In Hume Coal Pty Ltd v Alexander (No 4) [2013] NSWLEC 106, Sheahan J at [41] gave- …little weight to all the media attention flagged in the evidence. The interest of the public, local, regional or general, in the subject matter of proceedings, does not give them the necessary "public interest" character. Secondly (as argued by the Second Respondent) while it may be argued that LDM as an incorporated association does not have any pecuniary interest in bringing the proceedings this is not a determinative factor: Santos at [39] and Muswellbrook at [61].
Even on the assumption that the proceedings could be prima facie characterised as "public interest litigation", "something more" is lacking. Firstly, the proceedings did not raise any novel issue of general importance or contribute in a material way to the proper understanding and development of the law. The proceedings turned heavily on the particular facts of the case and the specific evidence before the Court as to the material before the Minister. The Third Respondent adopted the submissions of the Second Respondent above at [33]-[36]. This case can be contrasted with the proceedings in Millers Point Fund Incorporated v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29 (Millers Point) in which the Court exercised its discretion not to make the usual costs order. That claim concerned complicated questions of statutory construction and required detailed consideration of the nature of statutory powers and administrative decision-making: Millers Point at [31].

Consideration

Costs where ordered are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 (Mason CJ) and 567 (McHugh J). I have wide discretion to be exercised judicially in considering costs as to whether and how these should be awarded. The usual non-binding rule in judicial review proceedings is that the successful party(ies) obtains a costs order in its favour in the absence of any disentitling conduct. Such an order in this case would also be subject to consideration of whether all respondents should receive their costs given their commonality of interest. LDM seeks an order that each party pay its own costs relying on r 4.2 of the LEC Rules. Each case must be determined on its own facts.
I have set out above the useful guidance in Caroona as to how costs in public interest cases ought to be approached and the parties addressed those matters in their submissions. I note that the Second Respondent also suggested that caution should be exercised in determining whether to characterise proceedings as public interest litigation and whether to exercise the discretion to depart from the general rule that costs follow the event citing Oshlack in the High Court and numerous other Court of Appeal decisions such as Hastings (No 3), as summarised above in [29]. Careful examination of the passages relied on in the judgments referred to does not give rise to such a conclusion in my view or does not adequately reflect the position since r 4.2 of the LEC Rules was introduced in January 2008. In Oshlack, Kirby J effectively rejected such as a submission while recognising that public interest litigants should not be seen to be getting a general immunity from costs. There is much recent case law on costs in the context of r 4.2. Viewed in that light, authorities such as Hastings (No 3) reflect earlier jurisprudence on costs, as was observed in Fullerton Cove at [22] and [24]. Hastings (No 3) was also concerned with the different rules that apply in appeal proceedings when compared to first instance decisions in the Land and Environment Court per Young JA at [19].
Reliance on Botany Bay City Council (No 2) and Hunter Development Corporation as supporting a cautious approach to the characterisation of proceedings as public interest litigation is also misplaced. Botany Bay City Council (No 2) at [6]-[7] states the well-established principle that something more than the mere fact of an element of "public interest" in the proceedings is required. Hunter Development Corporation at [69] similarly states that the mere fact that the moving party in proceedings is an entity established to champion the "public interest" is in itself insufficient.
What is required is a principled consideration of the evidence filed in support of the application for a variation of the usual costs rule and consideration of the nature of the issues in the proceedings as identified non-exhaustively in Caroona. It is likely that a number of factors will inform the Court's consideration given that any single factor may well not be decisive.
In LDM No 1 (an interlocutory judgment) I found that LDM was acting in the public interest at [33] because LDM is a community group established to promote democracy in specified local government areas, it would gain no benefit directly if the proceedings were successful, and the grounds raised in the proceedings alleged important matters concerning the assessment of the SFS, including the adequacy of consideration of design excellence in the concept plan, and raised matters of considerable public importance given the location of the SFS. As I identify below, all these observations continue to apply in my view.
Ms Townsend's lengthy affidavit purported to identify members of the applicant association who are also members of the Greens political party and identified LDM social media posts about the then pending State government election in March 2019 encouraging people to vote based on opposition to the SFS redevelopment. The purpose of such evidence was to found a submission that LDM was not acting to protect the environment but was motivated by political considerations given the looming State government election. That some members of LDM are members of a political party is on one view irrelevant regardless of how many members are so affiliated. In any event Mr Maltby's evidence is that members of the Greens are a minority in the association, and the association does not serve the ends of any political party. Mr Maltby's affidavit demonstrates that members of LDM are largely local residents drawn from across the three local government areas of Woollahra, Waverley and Randwick surrounding the SFS.
I otherwise accept LDM's submissions set out at [18]-[21] above, that it is a not-for-profit organisation, founded with the purpose of civic advocacy, serving a wide public interest, seeking enforcement of public law obligations and had no pecuniary interest in the outcome of the litigation.
I do not accept the characterisation of the association by the respondents as having only a local interest not a wider public interest because its members were largely residents in the three local government areas surrounding the SFS, some of whom might be impacted by the larger stadium structure proposed. Such a submission understates the considerable physical significance of the SFS structure in its location and the public significance of the development given its function and location, attracting visitors from around Australia and overseas underscored by the fact that the Minister was the consent authority and INSW is overseeing a multi-million dollar redevelopment of an important recreational and sporting facility to ultimately be managed by the Second Respondent the SCGT.
The SFS redevelopment was controversial and did attract a great deal of media interest, in part because of the pending State government election with the possibility of a change in policy concerning the redevelopment. As identified in cases such as Hume Coal Pty Ltd v Alexander (No 4) a high level of media interest does not necessarily equate with a finding of public interest. It is not irrelevant however that an on-line petition attracted over 220,000 signatures as an indication of public engagement with the issue: see for example Save Little Beach Manly Foreshore Incorporated v Manly Council (2013) 198 LGERA 304; [2013] NSWLEC 155 at [16] where a petition was considered as part of determining whether a matter was public interest in nature. Such material confirms that the litigation affects a significant section of the public.
These circumstances are relevant to drawing a conclusion that the proceedings were brought in the public interest.
I find that the proceedings are public interest in nature for the reasons identified in [47]-[51] above.
As to whether there is something more in terms of the litigation, as Caroona identified, LDM pursued three grounds of review concerning (a) the period of public exhibition, (b) whether design excellence had been considered in the manner required by the SLEP and (c) whether contamination issues had been considered in the required manner under SEPP 55.
The ground concerning whether the public exhibition period for the DA should have been 30 days rather than 28 was technical and added little to an understanding of those provisions. To the extent there was ambiguity due to the existence of cl 83 of the EPA Regulation 2000 that was cured when it was repealed on 1 September 2018. I agree with the respondents that the litigation added nothing more to an understanding of these provisions.
Ground 2 concerned the application of cl 6.21 in the SLEP which required consideration of design excellence. The material in evidence and the parties' arguments were reasonably substantial when LDM No 2 is considered at [96]-[117]. Whether design excellence was considered by the Minister required the application of an accepted statutory test. Given the significance of the SFS building the approach to design excellence by the Minister was significant in a legal and environmental sense and this was an important ground in my view.
Ground 3 concerned the application of cl 7(1) of SEPP 55 I consider this ground did raise new issues concerning the application of that clause in the context of the concept plan approved by the Minister which had not previously been explored. The parties' arguments and my reasoning are set out at [147]-[201] of LDM No 2. I therefore conclude that two out of the three grounds of review did provide something more in elucidating the relevant statutory provisions and raised matters of importance in doing so.
Contrary to the respondents' submissions relying on [61] of Caroona, there are no countervailing circumstances. LDM's interest said to be served was described as a political interest or advantage. It is difficult to give that submission any weight at all. LDM is not a political party. That participation in a usual democratic process was occurring at the same time as the litigation reflects the timing of events in the election cycle and government decision-making about the SFS. I note that this is not an interest referred to expressly in [61] of Caroona, which does not purport to be exhaustive in any event.
I otherwise consider the proceedings were efficiently presented and run by LDM.
I exercise my discretion to hold that each party should pay its own costs of the proceedings.

Waverley Council v Infrastructure NSW (Matter No 19/43610)

In LDM No 2 I dismissed the applicant Waverley Council's (the Council) separate judicial review proceedings.
As identified above LDM in its separate but related proceedings raised three unsuccessful grounds of judicial review. The Council's sole ground in these proceedings was LDM's Ground 2, that is, that the Minister failed to consider design excellence as required by cl 6.21 of the SLEP.

Mr Monks' affidavit

Mr Monks director of Waverley Futures swore an affidavit dated 8 February 2019 which was read in LDM No 1. Extracts of Council meetings held on 12 December 2017, 15 May 2018 and 16 October 2018 were annexed to his affidavit. Mr Monks stated that these indicated that the Council had constantly expressed concerns regarding the impacts of the SFS redevelopment proposal on open space, local traffic congestion, public transport capacity and long term effect on public land. Letters to the Minister for Sports and the Department of Planning reflecting these concerns were annexed to his affidavit. The minutes of the sequence of Council meetings preceding the Council's decision to commence legal proceedings were also annexed to his affidavit. This included the minutes of the Council meeting held on 12 December 2017. These state that the Council agreed to collaborate with neighbouring councils and State and Federal representatives to work together in order to effect an immediate moratorium on the progression of the rebuilding of the SFS and encroachment and expansion into Moore Park at an anticipated cost to taxpayers of $705 million. Mr Monks stated that the Council resolved to commence legal proceedings to challenge the development consent on 5 February 2019.

Waverley Council's submissions

Firstly, the proceedings were brought in the public interest. A finding to this effect was made in LDM No 1 at [33]. The Council had for an extended period of time expressed concerns regarding the impacts of the proposal on open space, local traffic congestion, public transport capacity and long-term effect on public land (see affidavit of Mr Monks above at [63]). Although the site the subject of the development consent was not within the Council's local government area, the Council was considered a sufficiently significant stakeholder (annexure to Mr Monks' affidavit) to be invited to attend the "Community Consultative Committee" established for the development consent. Further the extent of public interest in the proceedings resulted in the development consent being a politically contentious issue in the state election in which specific policy positions were adopted by the Labor Party.
Secondly, the proceedings involved concerns that there was a serious and fundamental failure to have regard to mandatory considerations by the most senior decision-maker applicable in relation to the approval of a development consent where the consent itself had "generated considerable public interest and controversy" (LDM No 1 at [33]). The nature of the relief sought (declarations) demonstrates that the Council's purpose for litigating was enforcement of a public duty imposed by legislation.
Thirdly, the public interest was widespread involving not only through the Council ratepayers of the Waverley Council area but extending more broadly to residents of NSW since the SFS is a major Sydney landmark and will be visited by people from outside of Sydney, similar to Millers Point at [26]. The very degree to which the subject matter of the development consent became politicised is a testament to the widespread and intense public interest generated by it and the litigation concerning its validity.
Fourthly, the Council has no pecuniary interest in the outcome of the proceedings and its prime motivation of the litigation was to uphold and enforce public law obligations it feared had not been adhered to.
There is "something more" than the mere characterisation of the litigation as being brought in the public interest. The proceedings concerned complex and detailed consideration of the nature of statutory powers and administrative decision-making. Because there was no express statement indicating the formation of the relevant opinion in the decision-making documents (LDM No 2 at [126]), the case was ultimately determined upon whether consideration could be inferred in the circumstances (LDM No 2 at [127], [139]). Given it is unusual to prove formation of an opinion by inference, the proceedings and LDM No 2 have contributed in a material way to the development and administration of the law concerning judicial review.
Further there are no applicable countervailing circumstances. The Council only ran one self-contained and eminently arguable point. It did not unreasonably pursue or persist with points lacking merit. The Council's commencement of proceedings was reasonable and proper because its position as an acknowledged stakeholder affected by the development consent and its entitlement more generally under the open-standing provisions to seek enforcement of a public duty it perceived had not been complied with. Further the Council's conduct during the hearing was entirely proper and reasonable because it took into account the overlap of argument between it and LDM and accordingly avoided repetition, particularly in oral submissions and cross-examination of witnesses.

Third Respondent (Minister for Planning)

A number of the Minister's submissions overlap with those made in the LDM proceedings. The Council cannot rely on LDM No 1 to support its submission that the proceedings were brought in the public interest. The Court in LDM No 1 at [33] found that the matter had generated public interest and that Ground 2 (design excellence) concerned a matter of public importance. However the determination of those issues was not approached by reference to the costs authorities which ought to guide the Court's resolution of the present question. The Court observed at [35] that those cases were not relevant because they were decisions where at the conclusion of a case the applicant claiming to act in the public interest resisted a costs order being made against them whereas the Court was considering a different earlier point in time in LDM No 1.
These proceedings should not be prima facie characterised as being in the public interest. Firstly, the high level of interest in the case by members of the public does not of itself warrant the conclusion that the proceedings were "public interest litigation": see eg Santos at [38]. Whether litigation bears a public interest character is not determined by the degree of public interest but objectively by the extent to which it serves the public interest: see Jacob v Save Beeliar Wetlands (Inc); Muswellbrook; and Hume Coal Pty Ltd v Alexander (No 4) above at [41]. Secondly, there is no general principle that when a council is an applicant it is taken to be acting in the public interest for the purpose of determining an application for costs: Muswellbrook at [63]. The site the subject of the development consent was not within the Council's local government area. In circumstances where the Council has no regulatory function with respect to the development itself and its role was at most consultative, the suggested "enforcement" aspect of the Council's participation is not significant: see eg Muswellbrook at [60].
Even on the assumption that the proceedings could be prima facie characterised as "public interest litigation", "something more" is lacking. Firstly, the proceedings did not raise any novel issue of general importance nor can be said to have contributed in a material way to the proper understanding and development of the law. The proceedings turned heavily on the particular facts of the case and the specific evidence before the Court as to the material before the Minister. Ground 2 merely concerned the application of the appropriate test outlined in Uniting Church to the particular facts of this case. It cannot be said that raising this ground contributed in any material way to the development or clarification of the law. This ground simply turned on the facts being whether there was evidence to establish that the Minister had formed the requisite opinion of satisfaction. This case can be contrasted with the proceedings in Millers Point in which the Court exercised its discretion not to make the usual costs order. That claim concerned complicated questions of statutory construction and required detailed consideration of the nature of statutory powers and administrative decision-making: Millers Point at [31].
Secondly, Ground 2 was not of "significant" environmental value or importance (Caroona at [60]) because it was not alleged that matters of design excellence could not be achieved at the detailed design stage in the context of the subsequent development application that is required.
Thirdly, the ground of review cannot be said to affect a "significant section of the public" as they were not directly concerned with environmental protection.
Fourthly, while it may be argued that the Council as a local council does not have any pecuniary interest in bringing the proceedings this is not a determinative factor: Santos at [39].
There are countervailing considerations. The Council's sole ground in the proceedings entirely replicated Ground 2 of LDM's amended summons namely, that the Minister failed to form the requisite opinion as to design excellence under cl 6.21(3) of the SLEP. The Council's submissions on this ground traversed substantially the same territory as LDM's and both the Council and LDM made oral and written submissions on this ground. Accordingly the institution of separate proceedings by the Council in respect of the same matter gave rise to unnecessary duplication and expense. This constitutes disentitling conduct on the part of the Council weighing against the Court exercising its discretion under r 4.2(1) of the LEC rules.

Consideration

The Council is a democratically elected representative body under the Local Government Act 1993. I accept Mr Monks' evidence concerning the position taken by the Council in expressing concern in various ways about the impact of the SFS redevelopment. I repeat my findings on the principled approach to costs at [44]-[46] above and, at [50]-[51] above, the physical and public significance of the SFS site. I consider these proceedings are public interest in nature.
I have already held above in relation to LDM that the ground considering design excellence was an important one in a legal and an environmental sense. Accordingly, the "something more" requirement in Caroona is satisfied in my view.
Contrary to the Minister's submissions there are no countervailing considerations. The Council was efficient in the manner in which it argued the case and did not duplicate the efforts of LDM on this ground: see LDM No 2 at [104]-[107].
It is appropriate to make an order in these proceedings that each party pay their own costs.

Orders

In both proceedings numbers 19/39988 and 19/43610 the Court orders: 1. Each party pay their own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2019

(2010) 178 LGERA 411

(2010) 173 LGERA 280

(2010) 172 LGERA 157

(2013) 198 LGERA 304

At a glance

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Judgment (22 paragraphs)

Cases Cited (25)

Cited By (3)