MATTER : Application for Writs of Certiorari, and related relief against WESTERN PLANNING COMMISSION and THE STATE OF WESTERN AUSTRALIA

SOUTH FREMANTLE/HAMILTON HILL RESIDENTS' ASSOCIATION INC

Prerogative writs - Whether writ to issue - Town planning - Development and remediation of contaminated land - Applicant representing interests of nearby residents - Concession it was arguable that authorities owed obligation of natural justice to applicant - Whether arguable that the obligation was breached - Concession that arguably individual members of applicant had standing - Whether arguable applicant had standing

Practice and procedure - Stay of administrative decision pending return of order nisi - Whether special circumstances if contentions part of development completed before return of order nisi - Whether necessary for applicant to provide undertaking in damages or security for costs

Third Respondent : Mr M J McCusker QC & Mr D J Pratt

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd [2003] NSWLEC 357; (2003) 129 LGERA 344

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

KP Cable Investments Pty Ltd v Melt Glow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189

Minister of State for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273

Re Martin; Ex parte Dipane [2005] WASC 32

Re Minister for Immigration and Multicultural Affairs; Ex part Lam (2003) 195 ALR 502

Savage v Teck Exploration Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988

Stampalia v The Stewards of the Western Australian Trotting Association & Anor [1999] WASC 7

Talbot v Lane (1994) 14 WAR 120

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493

Australian Democrats WA Division Inc v Australian Democrats VIC Division Inc, unreported; FCt SCt of WA; Library No 980580; 5 October 1998

Carriage v Stockland Development Pty Ltd (No 4) [2004] NSWLEC 553; (2004) 135 LGERA 68

Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); Library No 980473; 25 August 1998

Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648

Harper v Racing Penalties Appeals Tribunal of Western Australia & Ors, unreported; SCt of WA (Kennedy J); Library No 930738; 26 November 1993

Harpur v Ariadine (1984) 2 Qd R 523

Heaney, Ex parte Nexus Minerals NL, unreported; SCt of WA (Owen J); Library No 950219; 8 March 1995

Indonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70

John v Rees [1970] 1 Ch 345

MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264

Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 206 CLR 57

Nilant v Macchia [2000] FCA 158

R v City of Munna Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400

Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Sarac v Croation House Hrvatski Dom Inc, unreported; FCt SCt of WA; Library No 950675; 12 December 1995

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Sydney City Council v Building Owners and Managers Association of Australia (1985) 2 NSWLR 383

Tigers Australian Football Club (Mayne) Inc v The Australian Football League [2000] FCA 1650

Twist v Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106

1 TEMPLEMAN J: The South Fremantle/Hamilton Hill Residents Association (Inc) applies for a writ of certiorari to quash decisions made by the Western Australian Planning Commission ("WAPC"), the Department of the Environment and the Department of Health in the course of a planning application by Stockland South Beach Pty Ltd ("Stockland") which wishes to carry out a residential development on some 22 hectares of industrial land in the South Fremantle and Hamilton Hill area.

2 The WAPC is joined as the first respondent. The Department of the Environment and the Department of Health are instrumentalities of the State of Western Australia which is joined as the second respondent. Stockland is joined as the third respondent.

3 The question arising on this application is whether the applicant has made out a sufficiently arguable case to justify the return of the application before the Full Court or a single Judge on a substantive hearing.

4 The proposed development is the subject of amendment 1008/33 to the Metropolitan Region Scheme. The amendment was referred to the Environmental Planning Authority which, by s 48D of the Environmental Protection Act 1986 was required to report to the Minister for the Environment on relevant environmental factors.

5 In September 2000, the Environmental Protection Authority identified a number of factors relevant to the proposal, including soil contamination. Then, on 22 December 2000, the Minister for the Environment issued a "statement that a scheme may be implemented ..." subject to certain conditions. These included the preparation of Environmental Management Plans ("EMP"), including a Site Investigation and Management Plant and a Site Remediation and Validation Report.

6 The WAPC is the authority with ultimate responsibility. It therefore determines whether the relevant conditions have been satisfied. However, it does so "with the concurrence of the Department of Environmental Protection on advice of the Health Department of Western Australian and the Water and Rivers Commission": see the Minister's statement which is Exhibit AC8 to the affidavit of Adele Simone Carles sworn 6 January 2005.

7 In September 2003, as a result of research carried out on behalf of the applicant, it emerged that a lead smelter had operated on part of the development site from 1898 to 1920. The soil in a two hectare area in the vicinity of the smelter (which is known as the ANI site) is heavily contaminated with lead and other heavy metals.

8 It will therefore be necessary to "remediate" the ANI site by excavating the contaminated soil and replacing it with clean fill. This work must be carried out in a manner which ensures that there is no health risk to residents of the South Fremantle and Hamilton Hill areas adjacent to the ANI site.

9 In about September 2003, at the applicant's request, the Departments of Health and Environment established a consultative process relating to the proposed development in general and the remediation issue in particular. This process involved representatives of the interested parties meeting in a Community Consultative Committee ("CCC").

10 Since then, three EMP's have been produced by or on behalf of Stockland ("EMP 1, 2 and 3"). A copy of EMP 1 was provided to the applicant in April 2004. It was the subject of criticism by appropriately qualified experts acting on behalf of the applicant in April and May 2004. On 23 April 2004, the Minister for the Environment wrote to the applicant's solicitors saying that her department had been notified of the applicant's concerns and would consider its comments during the assessment of EMP 1: see Exhibit AC26 to Ms Carles' affidavit of 6 January 2005).

11 Then, on 30 April, Ms Samantha Edgar of the Department of the Environment sent an email to CCC members, including Ms Carles and Dr Peter Dingle (one of the applicant's experts) in which she said:

"I think it's important that the CCC provides their written response on the plan ASAP to ensure it's considered prior to DOE & DOH finalising our position."

12 EMP 1 was rejected subsequently by the Department of the Environment.

13 EMP 2 was submitted to the Department of Health on 6 May 2004, and to the Department of the Environment on 7 May.

14 By then, it was becoming clear to the applicant that the process of community consultation to which it had been a party was not being followed, principally, it seems, because Stockland refused to release EMP 2 to the public.

15 It is the evidence of Ms Carles, who is the applicant's solicitor as well as a member of the applicant, that there were five CCC meetings between September 2003 and May 2004, all but one of which meetings were chaired by Mr Brian Devene of the Department of Health. Ms Carles' evidence is that there was "commitment" by Mr Devene that the residents taking part in the consultative process would be provided with all of the environmental documents relating to the ANI site, including EMPs submitted by Stockland. That evidence has not been contradicted. However, the CCC meetings did not continue after about May 2004. In a letter dated 17 May to Ms S Clark of the Department of the Environment, Ms Carles explained that her and Dr Dingle's decision not to attend the CCC meeting for the following day was due to the failure of, inter alia, the WAPC and Stockland to participate in the process of consultation.

16 EMP 2 was rejected by the Department of Health and the Department of the Environment on 15 June 2004. On the same day, Stockland released it to the applicant.

17 On the following day, the applicant's solicitors wrote to Mr A Trevor, the Senior Project Planner of the Department of Planning and Infrastructure (which is responsible for the WAPC) requesting that consideration be given to expert reports then in preparation on behalf of the applicant.

18 On 22 June, Mr Trevor replied. He said that the applicant's concerns should be raised with the Department of the Environment.

19 In the meantime, on 17 June, Ms Moen of the Department of the Environment sent an email to all CCC members, including the applicant, in which she expressed the Department's view that for various reasons, including the windy location of the ANI site, its close proximity to neighbouring residents and the potential for dust generation, it might not be possible to carry out the remediation of the site in accordance with an approved EMP.

20 On receipt of that email, Ms Carles telephoned Ms Moen and asked to be informed as soon as any further EMP was received, so that a further CCC meeting could be convened. Ms Carles' evidence is that Ms Moen agreed to do so.

21 Ms Moen repeated that assurance in the course of several telephone conversations with Ms Carles between 15 June and 17 November 2004 in which Ms Carles enquired about a further EMP.

22 On 17 November, Ms Carles telephoned Ms Moen again. Ms Moen said she had received EMP 3 and was about to finalise her review. Ms Carles asked for a copy of EMP 3, so that it could be reviewed by the applicant's experts and discussed with government agencies at the next CCC meeting. Ms Moen said she could not provide a copy of EMP 3, because Stockland would not agree.

23 It is not necessary to go into further detail for the purpose of this application. It is sufficient to note that without the applicant being given any opportunity to make submissions in relation to EMP 3, it was approved by the Department of Health, the Department of the Environment and the WAPC in November - December 2004.

24 It is those decisions the applicant seeks to have quashed by writs of certiorari.

25 The applicant contends that because it is a body representing the interests of the residents who live close to the ANI site, the WAPC was subject to a common law duty to act fairly towards the applicant, in the sense of according it procedural fairness in the making of its decision to approve EMP 3, this being a decision which affected the rights, interests and legitimate expectations of the applicant's members, there being no contrary legislative intention: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584, per Mason J as explained in Re Minister for Immigration and Multicultural Affairs; Ex part Lam (2003) 195 ALR 502, per Gleeson CJ at [34].

26 The applicant contends also that the decision of the Department of Health to advise the Department of the Environment about the satisfactory nature of the EMP and the decision of the Department of the Environment to concur with that advice and to so inform the WAPC, were decisions which arguably had a discernable effect upon the rights of the applicant's members: see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159.

27 The applicant contends that the two Departments and the WAPC breached the duties referred to above, in that none of them gave the applicant an opportunity to be heard before making their respective decisions. The applicant was therefore denied the opportunity of making submissions about EMP 3 before the relevant decisions were made.

28 The applicant's grounds, as set out in its Minute of Proposed Amended Notice of Originating Motion dated 4 February 2005, are, with respect, somewhat convoluted. As against the WAPC, the applicant first contends that its members and their families, including young children, reside in and own properties in close proximity to the ANI site. I do not think that contention is in dispute.

29 The applicant then goes on to contend that it and its members had been consulted and provided with relevant information by, and given an opportunity to make comments to, the Department of the Environment and the Department of Health in relation to "both earlier draft versions of the Site Investigation and Management Plan prepared by Stockland". I take the reference to the Site Investigation and Management Plans to be references to EMP 1 and EMP 2.

30 The applicant then contends that it and its members had been given undertakings by officers of the Department of the Environment and the Department of Health that it and they would similarly be consulted and provided with relevant information by, and given an opportunity to make comments to, those departments. The applicant then contends that there was a breach of those undertakings arising from the failure of the two departments to provide what I take to be EMP 3 to the applicant and its members and to give it and them an opportunity to make comments.

31 It follows, the applicant contends, that when the WAPC made its decision in reliance only on the advice of the Department of the Environment and the Department of Health, it denied the applicant and its members procedural fairness "despite having a legitimate expectation [that they would be consulted] and as a result [they] have been detrimentally affected".

32 The applicant contends further that the WAPC acted without or in excess of jurisdiction in that it took into account and relied upon irrelevant considerations in making its decision. It is said that the comments on EMP 3 made by the Department of the Environment and the Department of Health, having been prepared without the applicant being given an opportunity to be heard, were a nullity, and therefore constituted an irrelevant body of material.

33 The grounds of review against the Department of the Environment and the Department of Health are in similar terms.

34 The application is opposed by all the respondents. They accept for the purposes of the order nisi application that arguably, each of the government Departments and the WAPC owed the applicant an obligation of natural justice in the making of their respective decisions (TS65-6). However, the respondents contend that it is not even arguable that there was any breach of that obligation.

The test to be applied on an order nisi application

35 The test on an application such as this, is set out in Seaman on Civil Procedure at [56.1.1] in the following terms:

"The purpose of the order nisi or threshold stage by way of the ex parte application ... is to prevent the time of the court being wasted by people with misguided or trivial complaints of an administrative error. The court will not go into the matter in depth and the applicant for an order nisi for a writ of prohibition or certiorari need only demonstrate an arguable case for the relief sought: see Capobianco; Ex parte Castelli (SCWA), Library No 980567, 25 September 1998, unreported, BC9805064). That case holds that there is no necessity that the arguable case has some reasonable or real prospect of success ..."

36 That is, in essence, the test postulated by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 642-4. Lord Diplock said that the purpose of the threshold or order nisi stage was:

"To prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints of administrative error ..."

37 A little later in his judgment, Lord Diplock said:

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the Court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the Court is exercising at this stage is not the same as that which it is called on to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

This approach was adopted by the Full Court in Talbot v Lane (1994) 14 WAR 120 at 152 and 157.

38 It is not suggested in the present case that the applicant is a busybody with misguided or trivial complaints. However, if it can be demonstrated - without going into the matter into depth - that the applicant's case is entirely without foundation, then the application will be dismissed at the order nisi stage. That is the position for which the present respondents contend.

39 The respondents contend that although arguably the individual members of the applicant might have standing, the applicant itself does not. The respondents rely on the decision of the Full Court in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126. There, in a judgment with which Murray and Scott JJ agreed, I said (at page 186):

"It is said by the plaintiffs that as corporate persons, they are members of the local community: and that as such, they have a legitimate expectation in their own right that they would be consulted. I do not accept this submission. An incorporated association, by its very nature, has a persona which is different and separate from that of its members. It can represent members of a community, but it cannot, I think be a member of the community. If promises of consultation had been given to the plaintiffs themselves: or if there was an existence of regular practice of consultation with the plaintiffs, that would be a different matter: see Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 401, per Lord Fraser of Tully Belton."

The respondents contend that the same principle applies to the present case. They submit that the applicant is only a representative body to which no promises of consultation were given and that it was not involved in regular consultation with the relevant authorities.

40 As appears from the grounds summarised above, the applicant does not base its case purely on a legitimate expectation that it would be consulted. Indeed, the applicant points to the decision of Gleeson CJ in Ex parte Lam (supra) at [34] where his Honour noted that the concept of legitimate expectation may now have limited utility in considering whether or not there has been procedural fairness. In other words, the law has moved on since the decision in the Bridgetown case. Writing recently in the Australian Journal of Administrative Law (2005) 12 AJ Admin L 103 at page 106, Sir Anthony Mason said:

"There was a time when the place of legitimate expectations in Australian administrative law seemed secure. Despite continuing criticism of the concept by Barwick CJ and later Brennan J, it came to enjoy majority acceptance in the High Court by the time Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 was decided. Since then support for the concept has eroded, though it is conceded that it may have a reduced role to play."

41 A little earlier in his article, Sir Anthony Mason referred to the adoption of "the ultra vires theory of judicial review" (at page 105). In other words, if a decision maker is obliged to ensure that a person who is likely to be affected by the decision and fails to afford that person procedural fairness, the exercise of the decision making power will be ultra vires and therefore void.

42 In Ex parte Lam (supra) at [83] McHugh and Gummow JJ held that the following statement by McHugh J in Minister of State for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 311 - 312 should be accepted as representing the law in Australia:

"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it', Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?"

43 In my view, it is arguable that fairness in the circumstances of this case required that that the applicant be given an opportunity to be heard by each of the Department of Health, the Department of the Environment and the WAPC before their respective decisions were made in relation to EMP 3. There are several factors which lead me to that conclusion.

44 The first factor is that the applicant seems to have been recognised in the early processes of consultation as the body duly authorised to act on behalf of the residents in the area adjacent to the development site. Indeed, as I have noted above, it was positively encouraged - at least by the Department of Health - to continue in that role. That alone, in my view, distinguishes the present case from the Bridgetown case.

45 Further, it was the applicant which discovered that a lead smelter had formerly operated on the ANI site: and the applicant provided the services of duly qualified experts whose opinions appear to have been respected by the government departments.

46 In my view, the applicant's argument is strengthened by the fact that it was given an opportunity to be heard in relation to EMP 1, even though that plan might have been rejected in any event. There is, at least arguably, an inference that the Department of the Environment and the Department of Health afforded that opportunity to the applicant because they recognised that their obligation of procedural fairness required them to do so.

47 The Department of the Environment and the Department of Health appear to have taken the view subsequently that if Stockland would not disclose subsequent versions of the EMP, it could not be compelled to do so. However, given the concession (for the purpose of this application) by the government departments and the WAPC that arguably, obligations of procedural fairness were owed to the applicant, it is difficult to see how that obligation could be avoided merely because Stockland declined to cooperate. I can therefore see an argument that the Department of the Environment and the Department of Health could and should have informed Stockland that although it could not be compelled to disclose successive versions of the EMP to the applicant, its various proposals would not be considered unless it did so.

48 The position of the WAPC is somewhat different in that it appears to have declined to be involved at all in any process of consultation. The basis for this view appears to be based on the proposition that the WAPC is obliged to take into account only the advice given by the agencies which are required to give advice in any given situation: see the letter dated 13 December 2004 from the Department for Planning and Infrastructure to Ms Carles (AC42 to Ms Carles' affidavit of 6 January 2005).

49 In my view, it is at least arguable that this approach overlooks the obligation of the WAPC to afford procedural fairness to those who might be affected by its decisions. However it supports the argument that the decision of the WAPC could not stand if either or both of the decisions of the Department of Health and the Department of the Environment were quashed.

Conclusions in relation to the order nisi application

50 In my view, the applicant has made out a sufficiently arguable case to justify the grant of order nisi for a writ of certiorari to issue against the Department of Health, the Department of the Environment and the WAPC. However, I do not think it appropriate for the application to proceed on the present grounds.

51 In Savage v Teck Exploration Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988, Malcolm CJ said:

"On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendments so that the matter may proceed to the Full Court on a proper basis."

53 As I have noted above, I regard the applicant's grounds as somewhat convoluted. Further, I accept the submissions of both counsel for the respondents that it is not open to the applicant to rely on any assurance that it would be consulted in relation to EMP 3. At its highest, Ms Moen's agreement to inform the applicant if a new EMP was produced, seems at this stage to have been no more than that. Counsel for the applicant asked - no doubt in the hope that it would be a rhetorical question - "what was the point of informing the applicant about a new EMP if it was not to be given an opportunity to be heard in relation to it?"

54 But there is, I think, an answer to the question: it is that the knowledge that a further EMP had been produced would provide a basis for the applicant to approach Stockland to request its release.

55 Further, I do not think it open to the applicant to rely on prior consultation in relation to EMP 2, which was released to the applicant only on the day it was rejected by the Department of the Environment.

56 Finally, I do not think it open to the applicant to contend that because the WAPC acted on advice from the Department of Health and the Department of the Environment which had been given without any input from the applicant, it took into account irrelevant considerations. The advice may have been incomplete, but I do not think it could be said to have been irrelevant.

57 However, it is, I think, possible to discern from the applicant's grounds and its submissions the argument that the acknowledged obligation to accord procedural fairness to the applicant required each of the decision making bodies to allow the applicant to be heard before EMP 3 was approved, on the basis that the applicant was, and was recognised as being, the duly constituted representative of the residents. In the case of the two departments, that recognition arises from their respective dealings with the applicant in the early stages of consultation, particularly in relation to EMP 1. In the case of the WAPC, the argument may well be that if it did not recognise the applicant, it should have done, having regard to the communications between the applicant and the Department of Planning and Infrastructure, in which the applicant was requested to address its concerns to the Department of the Environment.

58 I propose, therefore, to give the applicant an opportunity to reconsider its grounds and to make such amendments as it thinks fit to accord with my observations about its case.

59 It is common for applications of this kind to be referred to the Full Court (now the Court of Appeal). However, I am informed by counsel for the WAPC and the State of Western Australia that they wish to file further evidence in opposition to the application and that they will seek orders for cross-examination of those persons who have sworn affidavits in support of the application. That being so, it would be more appropriate for the matter to go to a single Judge. I appreciate that this course involves the potential for appeals and consequent delay. However, it should be possible to minimise any such delay by expediting the matter if the parties so wish.

60 Order 56 r 5 of the Rules of the Supreme Court provides:

"(1) The Court may grant the order to show cause upon such terms as to costs, and as to giving security, or otherwise, as it or he thinks fit.

(2) An order nisi for Certiorari ..., shall, if the Court so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court otherwise orders."

61 In the present case, the applicant applies for a stay of the decisions the subject of its application. These are "the proceedings" to which O 56 r 5(2) refers. That expression, I think, harks back to the days in which prerogative writs were used in the Court of Queen's Bench to supervise the proceedings in inferior courts, which might be stayed if appropriate. The expression has been retained, despite the increased range of the prerogative writs which may now be used to review certain administrative decisions.

62 It is common ground between the parties that the applicant must demonstrate the existence of special circumstances, such that it would be just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation. That was the test applied by Owen J in Stampalia v The Stewards of the Western Australian Trotting Association & Anor [1999] WASC 7 at [11]. I reviewed the authorities in Re Martin; Ex parte Dipane [2005] WASC 32. In so doing, I referred at [18] to the decision of Murray J in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 where his Honour said at [24] that the grant of a stay involves an extraordinary or exceptional jurisdiction to be exercised in circumstances which included the following:

"If the applicant for a stay was to succeed, he or she could not be restored to the position deemed to be appropriate upon the making of final orders to determine the process of appeal or other form of review."

I was informed by Mr McCusker QC for Stockland that his client did not intend to start the remediation works until about the end of April (TS102). Given my view that it will be necessary to reformulate the grounds of the application; and given the respondents' intention of filing evidence and requiring cross-examination of deponents, I do not think it realistic to suppose that the matter could be heard and judgment given before the end of April.

63 In these circumstances, there is every prospect that, absent a stay, the remediation work would be completed before the application was determined.

64 That is, I think, a sufficiently special circumstance to require the imposition of a stay, to preserve the subject matter and integrity of the litigation. I will therefore order the stay of the relevant decisions.

Should the applicant be required to provide an undertaking in damages?****

65 Stockland contends - and I accept it to be the case - that if its proposed remediation of the ANI site is delayed, it will incur substantial costs. This was the subject of an affidavit by John Paul Ford who is Stockland's Finance and Administration Manager. Mr Ford used a financial model to predict the financial impact on Stockland if its sale of the subdivided lots was to be delayed. Mr Ford's analysis predicted a likely cost of $61,036 for one month or $769,246 for 12 months.

66 Counsel for the applicant objected to Mr Ford's evidence on the basis that it was opinion evidence and that Mr Ford had not qualified himself as an expert to provide that opinion.

67 I declined to enter into any debate as to the admissibility of Mr Ford's evidence. I preferred to proceed on the basis that delay would inevitably involve a cost to Stockland, commensurate with the value of its investment.

68 The applicant's position is plain: it concedes that it is impecunious (TS54). It follows that if the applicant was required to provide an undertaking in damages against the possibility of its application failing, that would effectively stifle the proceedings.

69 In my view, that would be an unjust result. The applicant has, I think, raised a matter of considerable public importance. Although the application is made in the context of a planning decision, it essentially involves questions of public health. This is not a case in which the applicant stands to gain some financial advantage from the proceedings. Furthermore, I cannot ignore the evidence that Stockland is a subsidiary of Stockland Corporation Ltd, a publicly listed company having assets of some $8 billion. Although I have accepted that Stockland would incur additional cost if its development proposals were delayed, it is not suggested that this would cause it financial hardship. Furthermore, by expediting the proceedings, it should be possible to keep any delay to a minimum.

70 In my view, Stockland must accept much of the responsibility for the situation in which it now finds itself. Had it chosen to make EMP 3 available to the applicant so as to enable it to be considered by the appropriate experts before the decision was made, it would have avoided this litigation.

71 I will not, therefore require the applicant to give an undertaking in damages.

Should the applicant be required to provide security for costs?****

72 Stockland seeks an order that the applicant provide $24,000 by way of security for its costs of the proceedings. In an affidavit sworn on 18 March 2005 in support of that application, Nicholas Joseph Perrignon, who is the General Manager of Stockland's Western Australian Development Division, expresses the belief that the applicant would be unable to pay Stockland's costs if ordered to do so and the belief that the proceedings are vexatious.

73 Mr Perrignon's contention that the proceedings are vexatious is based on the fact that Stockland "has consulted and continues to consult widely with the public at large and the relevant government departments". Further, Mr Perrignon refers to the fact that:

"The applicant voluntarily withdrew from the public consultation processes such as the community consultation group and the consultation processes initiated by (Stockland)."

74 It would be inappropriate to reach any concluded view about these assertions, without having Mr Perrignon cross-examined on his affidavit. However, on the evidence as it stands, I am quite unable to accept that the proceedings are vexatious. Indeed, I understood Mr McCusker QC for Stockland to expressly disavow that any such contention (TS101). Further, on the evidence as it now stands, it appears clear that although Stockland may have consulted widely it has refused to consult with the applicant, as the body established for the purpose of representing the persons who are likely to be most affected by the remediation works to the ANI site. The applicant withdrew from the consultation process when it emerged that Stockland was not prepared to cooperate, apparently against the wishes of the relevant government departments.

75 As I have noted above, the applicant is impecunious. In Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd [2003] NSWLEC 357; (2003) 129 LGERA 344 at [17] McLellan CJ noted that many cases were brought in the Land and Environment Court of New South Wales by impecunious applicants who were often voluntary associations or other community organisations concerned about the lawfulness of a proposed development which might have a significant impact upon the built or natural environment. McLellan CJ noted that the Court was required to apply conventional principles to applications for security for costs in these circumstances, and that in many cases the Court had adopted the formulation of Beazley J in KP Cable Investments Pty Ltd v Melt Glow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189 at 197-8. The considerations are:

1. Whether the application for security has been brought promptly;

2. The strength and bona fides of the case in which security is brought;

3. Whether the impecuniosity of the applicant results from the respondent's conduct, the subject of the claim;

4. Whether the application for security is oppressive in the sense of denying an impecunious citizen or organisation a right to litigate;

5. Whether there are persons standing behind the applicant who are likely to benefit, and who are willing to provide security for costs;

6. Whether persons standing behind the applicant have offered any personal undertaking to be liable for the costs, and if so, the form of any such undertaking; and

7. Whether the applicant for security is in substance the plaintiff or the proceedings are defensive in nature.

76 It is accepted by the applicant in the present case that the application for security has been brought reasonably promptly.

77 As I have noted above, I do not doubt the bona fides of the applicant's case. Further, on the evidence as it stands at present it seems to me that the applicant has reasonable prospects of success. I emphasise that I should not be taken to be anticipating the outcome of the substantive hearing. I acknowledge that the evidence is incomplete and that a number of factual issues are to be raised in affidavit evidence yet to be filed.

78 The applicant's impecuniosity does not result from Stockland's conduct. However, I am of the view that Stockland's application is oppressive in the sense that if successful, it would deny the applicant a right to litigate.

79 In the context of Stockland's financial resources and the orders of magnitude of costs likely to be incurred by Stockland in the event of any delay, the amount of $24,000 it seeks for security must be regarded as of little consequence. These circumstances give rise to an inference (about which, again, I express no concluded view) that the object of the application for security for costs is to stifle the litigation.

80 It is not suggested that there are any persons standing behind the applicant who are likely to benefit from the proceedings or who are able or willing to provide security for costs. As I have noted above, the applicant seeks no benefit: its objective in these proceedings is only to ensure that the health and well being of its members and their families are not prejudiced by inadequate remediation procedures for the ANI site.

81 In my view, having regard to these considerations, and in particular, that ordering security for costs would almost certainly result in the discontinuance of the application, I do not think the interests of justice would be served by making any such order.

82 The application for security for costs will therefore be dismissed.