Protect Our Parks Incorporated v Wollongong City Council

The outcome in the 4 August decision

1. Protect Our Parks' Amended Summons, at the commencement of the primary hearing, pleaded four grounds upon which it was said that the development consent granted by the Council was invalid. Protect Our Parks succeeded on only one of those four grounds, that being the ground based on the inadequacy of the notification process undertaken by the Council in notifying the nature of the amended development application to which approval was eventually given. Grounds contending that the proposed development was prohibited (Ground 1) and that the Council had failed to consider the Stuart Park Plan of Management (Ground 3) did not succeed. The final ground, Ground 2, related to matters said to arise from the Crown Lands Management Act 1989 (NSW) and was not pressed by Mr Robertson SC, counsel for Protect Our Parks at the hearing leading to the 4 August decision.

Relief pursuant to the Environment Planning & Assessment Act

1. The proceedings initiated by Protect Our Parks were brought pursuant to the open standing provisions of s 123 of the Environment Planning & Assessment Act 1979 (NSW) (the EP&A Act). The success by Protect Our Parks on one of the four grounds pleaded in its Amended Summons triggers the power of the Court to make orders pursuant to s 124(1) of the EP&A Act, a provision in the following terms: 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
2. However, s 124(5) expressly provides that "nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979".

Direction under s 124 of the EP&A Act

1. The initial submission made on behalf of Skydive was that I should exercise the broad discretion available under s 124 of the EP&A Act and refrain from granting the declaration and injunctive relief sought by the Applicant.
2. In Skydive's written submissions, Mr Lancaster SC, counsel for Skydive, set out several factors which might militate in favour of exercising that discretion. I am not satisfied that any of the three bases cited are applicable here as what is required is the restoration of the integrity of the notification system for development applications.

Discretion under the Land and Environment Court Act

1. Having so concluded, the terms of s 25E of the Land and Environment Court Act 1979 (NSW) (the Court Act) mandate a different starting point than s 124 of the EP&A Act. That provision (s 25E) is in the following terms: It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.
2. Part 3, Div 3 of the Court Act deals specifically with, amongst other things, the powers of the Court when it has determined that, as is here the case, a development consent has been granted invalidly (that being the effect of my determination in [139(3)] in the 4 August decision). It comprises ss 25A through to 25E of the Court Act. The options that are available to me are:

• Make a declaration that the development consent granted by the Council to Skydive is invalid pursuant to s 124(1) of the EP&A Act (thus having the effect of commencing the Council's assessment process afresh). This is the course urged upon me by Protect Our Parks; or
• Make an order pursuant to s 25B of the Court Act; setting terms for the Council processes to address the defect found to have occurred in the initial process and then, when such steps had been carried out, considering any application made by the Council reinstating the development consent (with or without alterations as appropriate). This is the course of events advocated as appropriate by Skydive.

1. The process provided by s 25B of the Court Act is clear from the terms of the provision: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.
2. I am obliged to consider these provisions in any case when considering whether or not to make a declaration of invalidity of a development consent, as here arises for consideration (Kindimindi Investments Pty limited v Lane Cove Council (2007) 150 LGERA 333; [2006] NSWLEC 399).
3. There are tensions in the approach to be taken in circumstances where the sole defect that is found is a deficiency in notification. The identified deficiency was the failure to incorporate details of the proposed demolition of two existing buildings in the notification letter sent by the Council following the amendment to Skydive's development proposal (see [108] to [138] of the 4 August decision).
4. Mr Lancaster set out, in [9] of his written submissions, material which he said supported the exercise of either the discretion under s 124 of the EP&A Act or s 25B of the Court Act. It is unnecessary to set out the detail of those matters for the purposes of this decision for the reasons dealt with in the following discussion.
5. One paragraph of Protect Our Parks' written submissions on this aspect warrants reproduction in order to understand my response to them. As a consequence, I set out [19] of their written submissions: In the present case, a declaration of invalidity would not cause much more disadvantage to the third respondent than a s.25B order. If the Consent is set aside, then the development application becomes an undetermined application, and it is the duty of the consent authority to notify and determine the proposal in accordance with the EPA Act. Similar steps are likely to be required, and a similar amount of time is likely to be taken under a s.25B order, although in that case the decision would be made under s.103, rather than under s.80.
6. I have quoted this paragraph because, in these circumstances, it seems to me that the matters contained in [19] are significant in how I should approach this matter.
7. First, I observe that time is not a matter of the essence for Skydive in addressing the defects of the Council's process, as it was acknowledged by Skydive that resolution of difficulties posed by the Stuart Park Plan of Management required resolution before Skydive could act on the consent. There would also need to be resolved the terms of any lease from the Council to Skydive of the proposed building (see [87] of the 4 August decision).
8. As I observed to Mr Lancaster during the course of his submissions, s 25B appears to me to be a procedurally specific approach that reflects the objective mandated in s 56 of the Civil Procedure Act 2005 (NSW) (the CP Act), to achieve the just, quick and cheap resolution of the issues genuinely in dispute between the parties. Although there is tension between the approach taken by Craig J in Csillag v Woollahra (2011) 181 LGERA 141; [2011] NSWLEC 17 and that of Preston CJ in Simpson v Wakool Shire Council (2012) 190 LGERA 143; [2012] NSWLEC 163, I am satisfied that the ability to impose terms on the Council's reconsideration of Skydive's application is the appropriate course to be followed.
9. Whilst I appreciate that, in Csillag, Craig J was dealing with a development on private land and the deficiency in the notification related to the location of the proposed development, the differences between that and the present circumstances do not provide, I am satisfied, a basis to depart from the process adopted by his Honour in those proceedings.
10. On the other hand, the position that confronted the Chief Judge in Simpson was one where no notification had been given. That is quite a significantly different position from that which had obtained here where it was clear that the Council's notification letter concerning Skydive's amended application had been sent to a significant number of individuals and organisations.
11. The list of those notified was set out across 25 pages of the material in evidence (see [108] of the 4 August decision). Although there was a deficiency in one aspect of the notification letter, notification had nonetheless been extensive and, as shown in the two affidavits of Andrew Carfield read in this aspect of the proceedings, a number of those notified did make submissions concerning the demolition aspect of the proposal (although a matter about which they had not been properly informed in the notification letter).
12. In considering how I should exercise my discretion, having crossed the threshold of considering that some intervention is warranted, it is appropriate to have regard, in my view, to the nature of the defect in the Council's past processes, as one factor, and what influence the elimination of that defect might have on the Council's future assessment process, as a second.
13. In this instance, the failure of notification concerned the omission to inform of the proposed demolition of two existing council structures, if the development were to go ahead as approved.
14. The need for demolition of these structures arose out of consideration by the Council's Independent Hearing and Assessment Panel (the IHAP) and its concern that the originally proposed location for the development was unacceptable. As a consequence of that first-phase consideration, Skydive lodged an amended application (this being the subject of the identified notification deficiency in these proceedings) proposing an alternative location for its proposed building. The alternative location proposed (and accepted by the IHAP as appropriate) is the location that gives rise to the necessity for the demolition of the two council structures.
15. In support of the proposition that the outcome of my consideration of making an order pursuant to s 25B should be the making of such an order, Mr Lancaster relied on the decision of Craig J in Csillag where, at [58] to [60], his Honour discussed the nature of the defect in notification and the scope of the works proposed to be undertaken pursuant to the development consent that had been granted. His Honour made an order pursuant to s 25B(1)(a), suspending the development consent until further order made pursuant to s 25C of the Court Act, and made directions for the parties to settle the regime to follow in order to permit further consideration of the making of an order pursuant to s 25C.
16. In the event that I consider it appropriate (as I do) to deal with the matter by orders pursuant to s 25B of the Court Act, Skydive proposed that the orders should provide for: 1. suspension of the consent; 2. further notification of the amended development application; 3. reconsideration of the amended application by the First Respondent (after consideration of any submissions received in response to the notification); and 4. following compliance with conditions (a) and (b) above, listing of the matter before the Court in order to consider the making of an order under s 25C of the Court Act.
17. Suspending the development consent and the use of s 25B of the Court Act (together with further notification, subject to the terms that I propose to impose) will enable both the IHAP and the Council to consider additional submissions about whether or not the two structures should be demolished and, if persuaded that they ought not be demolished, to consider some further alternative location for, or modification to, the proposed development.
18. In these circumstances, it is unnecessary to return the development application back to the commencement of a full assessment process, a process that would have the effect of removing the broader presumption of approval (with or without changes) that arises through the adoption of the s 25B suspension process.
19. Once such an order is made pursuant to s 25B, the matter returns to the Court, subject to the terms specified being carried out by the Council. After the Council has dealt with the proposed development in a fashion consistent with those terms, the Council can apply to the Court for an order pursuant to s 25C(1), if the Council proposes that there be no alteration to the original development consent, or pursuant to s 25C(2), if it is proposed that the development consent be regranted with alterations.
20. In response to a question from me, Mr Lancaster indicated that, if I were to make an order pursuant to s 25B, Skydive did not oppose the terms, specified pursuant to s 25B(1)(b), including the requirement that any further decision concerning the proposed development not be made by the member of the Council staff who originally determined the development application under delegated authority. Ms Walker, counsel for Protect Our Parks, also accepted that such an approach would be appropriate if I were to make a s 25B order.
21. I have, therefore, concluded that the appropriate course to follow will be to deal with the matter pursuant to s 25B of the Court Act in the same fashion as was dealt with by Craig J in Csillag.

Terms (s 25B(1)(b))

1. Adopting the approach taken by Craig J, it is appropriate for me to set out the elements of the terms I consider are necessary to be incorporated in Short Minutes of Order to permit the process triggered by an order pursuant to s 25B(1)(a), suspending the operation of the development consent, and then permitting a process which may lead to the validation of the consent (whether without alterations or on being regranted with alterations after approval by the Court pursuant to s 25C of the EP&A Act).
2. The terms that need to be reflected in the Short Minutes of Order are: 1. An advertisement in the relevant locally circulating newspaper to the same effect as the relevant element of the advertisement published on 3 December 2014, but with the addition of words making it clear that the amended development application included the proposed demolition of the two identified structures; 2. The issuing of a notification letter satisfying all matters contained in cl 2.1.1 of Appendix 1 to the Council's Wollongong Development Control Plan 2009 (if that Development Control Plan has been superseded, with a notification letter containing the elements arising from the 2009 Development Control Plan modified only to the extent that any additional information might be required in such a notification letter by any superseding development control plan); 3. The notification letter is to be sent to all persons whose names appear on folios 326 to 350 at Exhibit C, Tab 16 in these proceedings; 4. A period of 21 days from the date of despatch of those letters or the date of the advertisement (whichever is the later date) is to be permitted for further submissions to be made in response to the letter or to the advertisement in the locally circulating newspaper; 5. Any further assessment of Skydive's amended application is to be undertaken by an officer of the Council, other than Mr Lamb or Mr Riordan, being a person who holds a position of no less seniority than that of Mr Lamb; 6. Any further assessment report is to be referred to the IHAP for comment prior to any decision to propose regranting of development consent (whether on the same or differing terms); 7. Any decision on the proposed regranting of development consent to Skydive's amended application, if not made by the elected members of the Council but being made by a decision pursuant to delegation from the Council, is not to be made by Mr Riordan and is to be made by another officer of the Council whose seniority within the Council's structure is equal to, or higher than, that held by Mr Riordan.

Costs

1. There is a contest between Protect Our Parks and Skydive as to what costs order might be appropriate to be made in these proceedings. The statutory position that applies is clear. First, s 98(1) of the CP Act sets out the broad framework and does so in the following terms: 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. The Uniform Civil Procedure Rules 2005 (NSW) provide, in Pt 42 r 42.1, that: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
3. The principle contained in this rule is clear from the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 per McHugh J at [3]. As I understood Skydive's and Protect Our Parks' submissions, there was no dispute as to these general principles, merely as to whether, in the circumstances of these proceedings, it was appropriate to depart from that general presumption and, if so, in what fashion and to what extent.
4. First, I should observe that I have earlier set out the reasons why I have concluded that the appropriate form of relief to be granted is an order pursuant to s 25B of the Court Act, with appropriate terms attaching to the Council processes that will be triggered as a consequence to ensure transparency and independence in the further consideration of the matter. That process is one that, in a purely procedural (but not merit) sense, benefits Skydive. As a consequence, I do not consider that anything arises out of the decision of the Court of Appeal in Rossi v Living Choice Australia Limited t/as Living Choice (No 2) [2012] NSWLEC 144 that raises any potential barrier to an award of costs to Protect Our Parks in these proceedings.
5. Second, although Skydive has succeeded on two of the three grounds argued and determined, there is no reason arising from Protect Our Parks' running of the proceedings to contemplate making any costs order in favour of Skydive (see GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 174; [2006] NSWLEC 658 per Biscoe J at [15] to [19]).
6. Third, although s 98 of the CP Act gives a broad discretion as to costs (provided the discretion is exercised judicially), and there are well-identified circumstances where it may be appropriate to depart from the presumption that costs follow the event and make an issues-based costs order (see Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]), I am not satisfied that there is any proper basis to set aside the general presumption in these proceedings. I have reached that conclusion for the following reasons: 1. First, with respect to the two grounds advanced and actively contested (Grounds 1 and 3) upon which Protect Our Parks was unsuccessful, there is no basis upon which I could conclude that either of those grounds was so hopeless or untenable that it was unreasonable for Protect Our Parks to have run it in these proceedings. Indeed, an examination of the 4 August decision discloses that each of these grounds required careful consideration (even though they were held to be unsuccessful); 2. I accept the submission advanced by Ms Walker for Protect Our Parks that the ground that was originally pleaded, but was abandoned at the outset of the hearing (Ground 2), was related to (and, perhaps, to be characterised as a more aggressively pleaded form of) matters necessarily engaged by Ground 3. This position, I consider, is sufficiently clear from the material tendered by the parties and the way Mr Robertson ran the case for Protect Our Parks on Ground 3; and 3. As a consequence, taken overall, these proceedings can be characterised as mundane and conventional Class 4 proceedings (both as to their pleading and as to their conduct in the hearings) and that there is nothing arising that would warrant my making other than the ordinary compensatory costs order under the circumstances.

Costs and the Council

1. Mr Lancaster advised me that his instructing solicitors had served on the Council copies of the submissions to be made on behalf of Skydive concerning costs and had expressly put the Council on notice that, as the ground upon which Protect Our Parks had proceeded arose entirely out of defects in the Council's processes (processes over which Skydive had no control), Skydive proposed to seek, contingent on the approach I adopted in my costs determination, that the Council should share liability for that element of Protect Our Parks costs arising from, and in connection with, Ground 4 upon which Protect Our Parks had been successful.
2. Mr Lancaster advised me that his instructing solicitor had been informed by the Council that they did not wish to be heard on this point (with me understanding that not to be that the Council capitulated on that point, but merely that they did not wish to participate in this phase of the proceedings and be heard on that point).
3. I do consider it appropriate that the Council be subject to some costs liability with respect to Ground 4. I have considered how I should frame the costs orders to be made in a fashion that will impose an appropriate liability on the Council but do so in a fashion that does not make it likely that some extensive or contested assessment process might follow as a consequence of making that order. It is clear that the discretion contained in s 98(4) of the CP Act permits me to cast my costs order on this aspect of the proceedings in a fashion that provides an identified proportion of the costs as falling on the Council, with the remainder of the costs liability falling on Skydive.
4. As a consequence, having had regard to the totality of the written material requiring consideration and, in broad terms, apportionment of the amount of time devoted to the various grounds in the hearing, when combined with the extent to which I was required to address the three grounds that were ultimately pressed, I have concluded that I should regard the overall costs of Ground 4 as constituting one-quarter of the costs of the whole proceedings (doing as best I can based on these factors).
5. As a consequence, equal sharing of these costs between Skydive and the Council means that the appropriate order to be made concerning the Council is that the Council is to pay one-eighth of Protect Our Parks' costs as agreed or assessed, with Skydive to be liable for the remaining seven-eighths on a similar basis.

Conclusion

1. I have concluded that the appropriate relief to be granted is an order pursuant to s 25B of the Court Act suspending the development consent that has been granted by the Council. However, it is only appropriate to do so in circumstances where the terms ordered pursuant to s 25B(1)(b) are sufficiently detailed to ensure that the Council's processes that will be triggered will be conducted in a fashion that is both transparent and is seen to be independent of those who had had carriage, from within the Council's staff, of the original assessment and determination process.

Costs

1. Subject only to the requirement that the Council share with Skydive the costs for that element of the proceedings that relate to Ground 4, I am not satisfied that there is any reasonable basis to depart from the presumption that costs should follow the event.
2. As a consequence, the appropriate costs orders to be made will require that Skydive is to pay Protect Our Parks' costs of the proceedings, other than that portion of the costs associated with Ground 4 to be paid by the Council.
3. In order to facilitate settlement of the costs issues, I have concluded that the appropriate way to frame the costs liability of the Council (for the reasons earlier set out) is as being one-eighth of Protect Our Parks' costs as agreed or assessed.

Orders

1. It therefore follows from that which is set out above, that the orders of the Court are: 1. In accordance with s 25B(1)(a) of the Land and Environment Court Act 1979 (NSW) (the Court Act), the whole of development consent DA-2014/306 granted by the First Respondent by Notice of Determination dated 10 March 2015 is suspended until further order made in accordance with s 25C of the Court Act; 2. Direct the Applicant and the Third Respondent to bring in Short Minutes of Order to give effect to the terms of this judgment, including: 1. An advertisement in the relevant locally circulating newspaper to the same effect as the relevant element of the advertisement published on 3 December 2014, but with the addition of words making it clear that the amended development application included the proposed demolition of the two identified structures; 2. The issuing of a notification letter satisfying all matters contained in cl 2.1.1 of Appendix 1 to the Council's Wollongong Development Control Plan 2009 (if that Development Control Plan has been superseded, with a notification letter containing the elements arising from the 2009 Development Control Plan modified only to the extent that any additional information might be required in such a notification letter by any superseding development control plan); 3. The notification letter is to be sent to all persons whose names appear on folios 326 to 350 at Exhibit C, Tab 16 in these proceedings; 4. A period of 21 days from the date of despatch of those letters or the date of the advertisement (whichever is the later date) is to be permitted for further submissions to be made in response to the letter or to the advertisement in the locally circulating newspaper; 5. Any further assessment of Skydive's amended application is to be undertaken by an officer of the Council, other than Mr Lamb or Mr Riordan, being a person who holds a position of no less seniority than that of Mr Lamb; 6. Any further assessment report is to be referred to the IHAP for comment prior to any decision to propose regranting of development consent (whether on the same or differing terms); 7. Any decision on the proposed regranting of development consent to Skydive's amended application, if not made by the elected members of the Council but being made by a decision pursuant to delegation from the Council, is not to be made by Mr Riordan and is to be made by another officer of the Council whose seniority within the Council's structure is equal to, or higher than, that held by Mr Riordan; 1. Settled Short Minutes of Order in satisfaction of (2) are to be provided by e-mail to my Associate by 4.30 pm on 14 October 2016; 2. The matter is listed for mention before me at 9.00 am on Wednesday 19 October 2016 but, if (3) is complied with, orders will be made in chambers and the mention vacated; 3. The First Respondent is to pay one-eighth of the Applicant's costs as agreed or assessed; 4. The Third Respondent is to pay seven-eighths of the Applicant's costs as agreed or assessed; and 5. Liberty to relist any application pursuant to s 25C of the Court Act on not less than one (1) week's notice to all parties.

Addendum The active parties appeared before his Honour on 21 February 2017 when the Council moved, pursuant to s 25C(2) of the Land and Environment Court Act 1979, that the suspenced development consent be reinstated, subject to amended conditions, as the Council had carried out the processes required by his Honour's decision of 4 August 2016. The necessary substantive orders were not opposed by either of the other active parties to the proceedings. Although the Applicant sought its costs of attending on the motion, his Honour declined to make that order. The orders finalising these proceedings, therefore, were: (1) A declaration that the terms of the Court's orders of 17 October 2016 in these proceedings have been complied with. (2) A declaration that development consent No. DA-2014/306 has been validly re-granted. (3) Revocation of the order of suspension of development consent No. DA-2014/306. (4) No order for costs.

Amendments 01 March 2017 - Addendum added 21 February 2017. 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: 01 March 2017