Plumb v Penrith City Council and Anor

(a) the discretion conferred upon the Court under s 69(2) is wide and unconfined;

(b) it is a discretion which must be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation;

(c) ordinarily, costs follow the event; that is, costs are awarded to the successful party as compensation for the costs it has incurred;

(d) but the principle that costs follow the event is not a fixed or absolute rule;

(e) the Court must take into account all relevant factors, which, in proceedings that have been brought pursuant to the open standing provision contained in s 123 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), may include factors which have a public interest nature;

(f) the consideration of all relevant factors may lead to a finding that special circumstances exist for departing from the general rule that costs follow the event and may lead to a consequent determination that there be no order for costs;

(g) public interest factors are not determinative factors; they are merely relevant factors to consider;

(h) nor is it necessary that the Court characterise the litigation as "public interest litigation". What is required is the consideration of all relevant factors, including factors of a public interest nature;

The relevant factors 7 Having regard to the above principles, I turn to consider a number of factors.

Public interest matters 8 Mr Norton, appearing for Mr Plumb, submitted that the proceedings related to a matter of public interest in two senses. The first was a general public interest in the preservation of threatened species and the proper assessment of a development application on land occupied by a threatened ecological community. The second was a particular public interest in that there was a high level of interest in the development shown by members of the public. 9 The high level of interest is evidenced in the council planner's report to the council of 4 March 2002 (which was tendered at the hearing) in which it was noted that there had been many meetings concerned with the proposed development, including a public meeting, and that the council had received a large number of submissions, both for and against the development. Included amongst the matters raised against the proposed development was its impact upon CPW and the need for a species impact statement. 10 Mr Plumb swore an affidavit for the purposes of the costs hearing, in which, amongst other things, he appended various newspaper clippings and other reports (from such bodies as the Nature Conservation Council, the ADI Residents Action Group and the Sydney Bushland Act Group). None of these documents dealt directly with the site or the proposed development upon it, but they were concerned generally with the ADI site of which it was part, and they were also concerned with the potential impact of development generally upon CPW. 11 I am prepared to accept, therefore, that there was a high level of particular public interest in the proposed development, and that there was a general public interest in the protection of a threatened ecological community by the proper application of the development assessment process. 12 Mr Plumb's evidence establishes that he had no personal interest in the proceedings. He lives some distance from the site, but he has been actively involved in campaigning for the protection of CPW on the ADI site generally. He brought the proceedings under the open standing provision in s 123 of the EP&A Act, and, as he deposed in his affidavit, his motivation for doing so was to ensure compliance with the EP&A Act insofar as the assessment of impact upon a threatened ecological community was concerned.

Success on the preliminary issue 13 A very important part of the case was the question of whether or not CPW occurred on the site. As I pointed out at par 30 of the primary judgment, a flora and fauna assessment of the site was carried out for the purpose of the development application by AMBS Consulting. It concluded that CPW did not occur on the site. However, the expert evidence adduced at the hearing established that CPW did occur on the whole site - see pars 25 - 32 of the primary judgment. 14 Mr Norton pointed out that the applicant was successful on this issue, and it justified his stance in bringing the proceedings. Furthermore, detailed surveys of the site were undertaken as a consequence of the proceedings, and the results were contrary to the material before the council when it made its decision. 15 Although the Court should be wary of apportioning costs on each of multiple issues and various issues of fact and law (see Cretazzo v Lombardi (1975) 13 SASR 4 at 16), the issue of the existence of CPW on the site was a critical issue, and it was an issue upon which the applicant was wholly successful.

New matters raised 16 Mr Norton submitted that the proceedings raised novel matters relating to the proper interpretation and application of the eight part test of significant affect set out in s 5A of the EP&A Act. These matters were determined in a way that will be of guidance to future decision-makers applying the eight part test. These matters were:

(a) the proper construction of the words " known habitat" in par (c) of the eight part test - see par 42 of the primary judgment;

(b) the issue as to whether the potential of an endangered ecological community in a degraded area to regenerate is a relevant matter to be taken into consideration in the application of par (c) of the eight part test - see pars 46 - 47 of the primary judgment; and

(c) the proper approach to the application of par (g) of the eight part test - see pars 60 - 65 of the primary judgment. 17 I accept that each of these matters will assist in the proper understanding of the eight part test and its application in the future, and to that extent, the proceedings did have the wider implication than simply the effect of the proposed development on CPW on the site. Mr Drury, appearing for the council, contended that the proceedings were simply a challenge to a development consent, and they did not involve the testing of any legislation. I do not accept this submission. Once it had been determined that CPW existed on the site, then the case turned on the proper interpretation and application of the eight part test (and any other relevant factors) to determine if the development was likely to significantly affect threatened species (see pars 36 and 37 of the primary judgment).

The council's conduct 18 The applicant points to two matters which he claims constitute conduct on the part of the council disentitling it to an award of costs in its favour. 19 The first is the council's stance on the existence of CPW on the site. In its points of defence, it denied the existence of CPW on the site, and it pursued such denial at the hearing, despite evidence from its own expert that CPW did occur on the site. 20 I do not regard the council's stance as disentitling conduct. The issue of the existence of CPW on the site was not free from doubt. The material before the council when it made its decision (the AMBS report) concluded that CPW did not exist on the site, and three previous surveys (noted at par 31 of the primary judgment) had not identified CPW as occurring on the site. Although, ultimately, the weight of evidence at the hearing supported a finding that CPW occurred over the whole of the site (see par 25 of the primary judgment), the council was justified in putting the matter in issue. 21 The second matter said to constitute disentitling conduct was the active role taken by the council in all stages of the proceedings, including being represented at the hearing by senior and junior counsel. In Mr Norton's submission, this type of participation in the proceedings is contrary to the principle set out in R v Australian Broadcasting Tribunal: ex p Hardiman (1980) 144 CLR 13 and Oshlack v Richmond River Council. In the former case, at pp 35 - 36, the High Court pointed out that the participation of the tribunal should normally have been by way of submitting appearance, because an active role might endanger the impartiality which would be required to be maintained in further proceedings. A similar sentiment was expressed by Gaudron and Gummow JJ in par 46 of their joint judgment in Oshlack v Richmond River Council, and by Kirby J at par 141 of the same case, it being recognised by their Honours that the real contradictor in cases where a development consent is challenged is the party against whom injunctive relief is sought. 22 In Mr Norton's submission, there were two reasons why the application of this principle was appropriate in this case. The first reason was that, if the applicant had been successful, the council would have been likely to have been required to determine impartially a fresh development application (accompanied by a species impact statement) for the site. Secondly, the challenge was not made on grounds relating to the council's own conduct in assessment of the development application, such as failure to take into account a relevant consideration. Rather the challenge was made upon the basis of lack of jurisdiction to determine the development application at all, absent a species impact statement. 23 The application of the principle in Hardiman's case was extensively considered by reference to a number of relevant authorities by Bignold J in Hayden Theatres Pty Ltd v Penrith City Council and Ors (NSWLEC, 1 October 1998, unreported) in pars 10 - 29. His Honour noted that it has been a consistent feature of the jurisprudence of this Court that a council which has granted the development consent the subject of legal challenge has invariably actively participated in the defence of the claim of invalidity of that consent. 24 It is to be noted that the Hardiman principle is not an absolute rule. In Oshlack v Richmond River Council, Gaudron, Gummow and Kirby JJ spoke in terms of "appropriateness" as to the position the council ought to take in each particular case. It is a matter for judgment on the facts of each case. 25 In this case, the site was part of the ADI site that, as Mr Plumb's affidavit makes clear, was a controversial parcel of land engendering considerable public interest in the protection of threatened species. Accordingly, there may have been, to respectfully adopt the words of Kirby J in Oshlack v Richmond River Council at par 141, "… perspectives that may go beyond those of the protagonists …". But there was no evidence during the costs hearing of the nature of any wider perspectives concerning the site itself. In circumstances where the challenge was based essentially upon lack of jurisdiction and not upon any misfeasance of the council, it is proper, I think, to take into account that the council involved itself as an active participant rather than leaving the defence of the challenge to the second respondent as the proponent of the proposed development upon the site. Since it is usual, in this Court, for a council to defend a challenge of invalidity of a development consent which it had granted, I would not regard active participation as automatically disentitling the council to an award of costs in its favour. However, in my opinion, it is, in the circumstances of this case, a factor to be weighed in the determination of the council's application for costs.

The basis of the challenge 26 The basis of the challenge was arguable and not specious, and it had a real chance of success. There was an important issue, as I have noted in par 5 above, whether CPW existed on the site. As to the consequent issue, namely, whether the development was likely to significantly affect a threatened species, the expert opinion was divided - two experts thought it would, and three experts thought it would not (see par 16 of the primary judgment). 27 There were also issues as to the proper legal approach to the determination of the issues in the proceedings. There was binding authority for holding that the determination of whether the proposed development was likely to significantly affect CPW was a jurisdictional fact (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55), but there were arguable issues about the meaning of "likely" and "significant", about the time at which the determination of the jurisdictional fact should be made, about the question of deference to the council's own decision on the jurisdictional fact, and about the proper construction of s 78A(8)(b) of the EP&A Act (see par 22 of the primary judgment).

Conclusion 28 I find that there are factors in this case that constitute special circumstances sufficient to justify a departure from the ordinary rule as to costs. In summary they are:

(1) the high level of public interest in the proposed development on the site;

(2) the general level of public interest in the protection of CPW;

(3) Mr Plumb's lack of personal interest and his exercise of rights under s 123 of the EP&A Act to protect a threatened species;

(4) Mr Plumb's success on the critical issue as to whether there was CPW on the site;

(5) the exposition of the proper interpretation and application of the eight part test;

(6) the council's participation in the proceedings as an active protagonist where the issue was lack of jurisdiction, not the council's conduct; and

These factors, as between the applicant and the council, justify a determination that there be no order as to costs. 29 My formal determination is therefore as follows: (1) The council's application for costs is dismissed.

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.