Razorback Environment Protection Society Inc - V - Wollondilly Council & Anor [1999] NSWLEC 8

The first respondent is the consent authority which granted the two development consents in question. The second respondent is the applicant for development consent. The applicant must thus show that the development consents are unlawful. The reasons why it is said that the development consents are unlawful is not altogether clear. I shall nevertheless attempt to state those reasons, as reformulated by the applicant's counsel, Mr P R Clay, in the course of his submissions.

Firstly , the development application was made on 17 October 1997 when Sydney Regional Environmental Plan No 20 applied to the land. On 21 October 1997, Sydney Regional Environmental Plan No 20 was repealed and in its place a new regional environmental plan, Sydney Regional Environmental Plan No 20 (No 2 - 1997) commenced. The latter instrument contains a saving provision (clause 14) which provides that the instrument does not apply to or in respect of any development application that was lodged with a consent authority, but was not finally determined, before the commencement of that instrument. The applicant asserts that in determining the development application the first respondent took into account an irrelevant consideration, namely the later instrument; and the first respondent failed to take into account a relevant consideration, namely the earlier instrument.

The respondents answer this aspect of the claim in two ways. The later instrument repealed the earlier instrument, so that on and from 21 October 1997 the earlier instrument was no longer extant. Moreover, the later instrument is expressed to not apply to a development application that was lodged and not determined before the commencement of the later instrument. Accordingly, there being no relevant regional environmental plan applying to the development application, the first respondent could not be in error. The second way in which the respondents answer this aspect of the claim is to rely on a discretionary defence. The first respondent took into account the second regional environmental plan (although it was not required to do so). The requirements of the second regional environmental plan are the same as, but more onerous than those of the earlier regional environmental plan, so that the substance of the relevant considerations thereunder were nevertheless taken into account.

Secondly, the condition upon which the deferred commencement consent was issued was the granting of concurrence to that development by the Director of the Department of Urban Affairs & Planning. The applicant submits that the power to grant development consent could only arise after such concurrence: there is no power to grant consent before such concurrence.

The respondents deny that the power to issue a deferred commencement consent is limited in the manner suggested by the applicant. Again, the respondents also rely upon a discretionary defence. The Director of the Department of Urban Affairs & Planning has now refused her concurrence to the development. The consent cannot become operative. There is thus no utility in seeking to impugn the deferred commencement consent.

Thirdly , the consent granted under s 92 of the Act was for Stages 1 and 3 of the development; the deferred commencement consent granted under s 91AA of the Act was for Stage 2 of the development. The consent granted under s 92 in so far as it concerns Stage 3 is therefore bad on its face because it purports to grant consent to that Stage before Stage 2.

The respondents answer this part of the applicant's claim by asserting that all three stages are independent of each other. Whether this is so is a question of fact which I am not required to resolve at this stage, but if the respondents are correct, then this would be a complete answer to this aspect of the applicant's claim.

Fourthly , the applicant asserts that in its consideration of the development application the first respondent relied solely on an expert's report furnished by one of the proponents of the development. No responsible body, it is submitted, should have relied solely on the expert advice of a proponent on an important matter, namely, the agricultural viability of the land.

The respondents contend that although the expert's report was also that of a proponent, there is no dispute that the expert is suitably qualified and note that no challenge is made to the substance of the report. In the absence of any question going to the merit of the report, the Court would not, it is submitted, set aside the first respondent's determination on this ground.

Fifthly , the applicant asserts that Stage 2 of the development was described in the report which was considered by the first respondent as a boundary adjustment, whereas it was in reality an application for subdivision. The respondents assert that there was no misdescription in the report which was considered by the first respondent; a boundary adjustment is a species of subdivision. The question of whether the report is sufficiently misleading so as to vitiate the first respondent's determination is a question of fact which, again, I do not have to decide in this application. A fair reading of the report, however, leaves me with the impression that no one could have been misled as to what was intended by the application.

Sixthly , the applicant asserts that if, contrary to its first point, the development application fell to be considered under the new regional environmental plan, there was a failure by the first respondent to properly consider a number of relevant matters thereunder.

As noted in relation to the applicant's first point, however, the respondents contend that the new regional environmental plan plainly does not apply to the subject development application. Again, if the new regional environmental plan applies, the question of whether the substance of the new regional environmental plan was nevertheless considered is a question for determination at the trial.

Seventhly , the applicant asserts that the first respondent did not have the power to grant consent to Stage 3 of the development in the absence of the land being "all or part of an original holding".

The respondents contend, as I understand it, that there is no need for the development to be on land which is "all or part of an original holding" since the original holding for the Stage 3 development is greater than 40 hectares, thus obviating the requirement which is said by the applicant to apply.

I have set out above my understanding of the bases of the applicant's claim and the respondents' contrary contentions thereon. I have done so because the matters to be considered on an application for security for costs include the nature of the litigation and the strength of the applicant's case. I conclude from the abovementioned outline of the applicant's case and the respondents' contentions that the applicant's case appears to have no better than a moderate chance of success. Having regard to the Court's limited role in judicial review there must exist some doubt as to whether the applicant will succeed at the hearing.

Mr Clay relies strongly on an assertion that the applicant brings this action in the public interest. He relies upon the aims and objectives of the applicant, which include the aim of ensuring that the first respondent adheres strictly to the objectives of the relevant environmental instrument and to the guidelines of any relevant development control plan; and in doing so to remind the first respondent that such instruments exist to safeguard the preservation of the rural natural landscape character of its area. Mr Clay also relies upon the stated principal activities of the applicant, which include "reviewing Council decisions re development applications". Further on this aspect, Mr Clay relies upon the fact that this action is brought as civil enforcement of the Environmental Planning & Assessment Act pursuant to the open standing provision in s 123 thereof. Finally, Mr Clay submits that none of the members of the applicant stand to gain any personal financial advantage from the bringing of this action.

The respondents submit that there is no public interest in this litigation. The aims and objectives of the applicant do not include the bringing of proceedings to advance those aims and objectives. Neither do the stated principal activities of the applicant include the bringing of proceedings to advance those activities. It is further submitted that each member of the applicant, being a property owner, has a private interest in bringing this action. The respondents finally submit that the proceeding does not raise any important question of law as to the interpretation and future administration of statutory provisions which have implications for the respondent, the developer or the public.

In my view this is not a case of purely inter parties litigation. The applicant's aims and objectives include, as I have noted in paragraph 21 above, ensuring that the respondent strictly adheres to its relevant planning instruments. The proceeding thus relates to the applicant's aims and objectives. It is brought pursuant to the open standing provision of the Environmental Planning & Assessment Act (s 123). There is no suggestion that the applicant's members stand to gain financially from this action. Although no important question of law is identified for the future administration of the relevant statutory provisions, I am prepared to approach this issue on the basis that this is not an ordinary action of private interest only to the litigants themselves.

The above conclusion is not, however, determinative of the application for security. The applicants remain exposed to an order for costs in the proceeding. It does not follow that if the applicant is unsuccessful in the proceeding that no order for costs would be made against it because it is a public organisation pursuing aims and objectives of a public nature. In Oshlack v Richmond River Council (1998) HCA 11, 72 ALJR 578, the High Court held that although litigation may be classified as public interest litigation and is thus relevant as a consideration in the exercise of a court's discretion to order the payment of costs, that factor was not of itself determinative. All other relevant considerations should be taken into account and something more than the categorisation of proceedings as public interest litigation is needed before a successful respondent should be denied costs.

The respondents bring these applications for security for costs pursuant to the Land & Environment Court Act 1979, s 69(3), which provides:

"(3) The Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party."

The respondents also rely upon the Supreme Court Rules , Pt 53 r 2(1) (which applies in this Court by dint of the Land & Environment Court Rules, Pt 6 r 1). That rule sets out a number of circumstances under which the Court may order a party to give security for costs, including ( inter alia ):

"(e) That there is reason to believe that a plaintiff being a body corporate will be unable to pay the costs of the defendant if ordered to do so."

I have found (in paragraphs 3 and 4 above) that there is reason to believe that the applicant, being a body corporate, will be unable to pay the costs of the respondents if ordered to do so. The power of the Court to order that security for costs be given is, of course, discretionary. In Tinda Creek Spiritual & Environment Centre Inc v Baulkham Hills Council (27 November 1997, unreported) Sheahan J usefully set out the considerations which apply in the exercise of the Court's discretion. In particular, Sheahan J adopted the following considerations described by Beazley J in KP Cable Investments v Meltgow Pty Ltd (1995) 56 FCR 189 at 197-198:

"(i) whether the application for security has been brought promptly

(ii) the strength and bona fides of the case in which security is sought

(iii) whether the impecuniosity of the plaintiff/applicant results from the respondent/defendant's conduct subject of the claim

(iv) whether the application for security is 'oppressive' in the sense of denying an impecunious citizen or organisation a right to litigate

(v) whether persons standing behind the plaintiff/applicant are likely to benefit and willing to provide the security

(vi) whether persons standing behind the plaintiff/applicant have offered any personal undertaking to be liable for the costs, and, if so, the form of any such undertaking

(vii) whether the applicant for security is in substance a plaintiff or the proceedings are defensive in nature."

As to the abovementioned considerations, (i) is satisfied here since the applications for security were brought at a relatively early stage of the proceedings; as to (ii) I have concluded that the applicant has an arguable but not a particularly clear or strong case - it cannot be said that an arguable error has plainly occurred; (iii) is not relevant here; as to (iv) an order for security may have the effect of stultifying the litigation, but the applicant's fundraising activities have realised the amount of $13,323 in the ten months since February 1998, so that an increase in fundraising activities may not be an impossible task; (v) is arguably not relevant; as to (vi) no person standing behind the applicant has offered any personal undertaking to be liable for the costs; and (vii) is not relevant.

The other relevant consideration in this case is, of course, the public interest nature of the litigation discussed in paragraphs 21-24 above.

In weighing up all the relevant considerations which are in favour of an order, against those which are against the making of an order, I am persuaded that in the exercise of my discretion, I should make an order for security for costs in favour of the respondents. If at the final hearing the applicant is successful then it would be no worse off for having given security: it will get its security back. I note that the applicant does not dispute the amount of security sought by each respondent in this case.

(1) The applicant give security for the costs of the first respondent of and incidental to the proceeding in the amount of $25,000, in a form satisfactory to the Registrar.

(2) The applicant give security for the costs of the second respondent of and incidental to the proceeding in the amount of $25,000, in a form satisfactory to the Registrar.

(3) The proceeding be stayed until the security in Orders (1) and (2) is given.

(4) The question of the costs of the Notice of Motion is reserved.

I certify that this and the 12 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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