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.