Corowa v Geographe Point Pty Ltd [No. 2]

[2007] NSWLEC 272

Land and Environment Court

of New South Wales

CITATION:

Corowa v Geographe Point Pty Ltd & Anor [No. 2] [2007] NSWLEC 272

PARTIES:

APPLICANT
Robert Corowa

FIRST RESPONDENT
Geographe Point Pty Ltd

SECOND RESPONDENT
Tweed Shire Council

FILE NUMBER(S):

41042 of 2006

CORAM:

Jagot J

KEY ISSUES:

Costs :- whether proceedings brought in public interest - whether additional or special circumstances - whether usual order as to costs should be made - usual costs order made

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 5(a)(iv), s 101, s 123
Land and Environment Court Act 1979 s 63, s 69
Threatened Species Conservation Act 1995 s 3

CASES CITED:

Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718;
Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121;
Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365;
Kennedy on Behalf of the Sandon Point Aboriginal Tent Embassy v The Director-General of the National Parks and Wildlife Service and Another (No 2) (2002) 122 LGERA 84;
Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66;
Oshlack v Richmond River Shire Council (1998) 193 CLR 72;
Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236;
Plumb v Penrith City Council and Another (2003) 126 LGERA 109;
Save the Ridge Inc (Association No A03329) v Commonwealth and Another (2006) 230 ALR 411;
Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254;
South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114

DATES OF HEARING:

14 May 2007

 
DATE OF JUDGMENT: 

23 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (agent)
SOLICITORS
N/A

FIRST RESPONDENT
Ms L Lim (solicitor)
SOLICITORS
NOT Lawyers

SECOND RESPONDENT
Dr S Berveling
SOLICITORS
Stacks/Northern Rivers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

23 May 2007

41042 of 2006

ROBERT COROWA
Applicant

GEOGRAPHE POINT PTY LTD
First Respondent

TWEED SHIRE COUNCIL
Second Respondent

JUDGMENT

Jagot J:

1 On 13 March 2007 I delivered my reasons for dismissing the applicant’s Class 4 application (Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121). In the Class 4 application Mr Corowa sought declarations that development consent 03/1038 authorising the subdivision of land at Chinderah and associated construction certificate 05/1084 were invalid and, alternatively, that Geographe Point Pty Ltd had cleared that land in breach of the consent, as well as associated orders for the remediation of the land. Geographe Point and the Council now seek an order for costs.

2 Geographe Point submitted that:

(1) Under s 69 of the Land and Environment Court Act 1979, the successful party was generally entitled to the usual order for costs absent disentitling conduct.

(2) There are no circumstances that would justify departure from the ordinary principle that costs follow the event. In particular, the proceedings could not be characterised as having been brought in the public interest. There was no evidence of a high level of public interest in the subject matter of the litigation.

(3) There was significant delay by Mr Corowa in commencing the proceedings. The proceedings had been commenced after the land had been cleared. This disclosed that Mr Corowa objected to the clearing only, not the subdivision of the land. Accordingly, Mr Corowa was not motivated by any general desire to protect the land from development.

(4) The context demonstrates that the proceedings were part of a campaign against the proposed extension of the Chinderah marina [the subject of decision in Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66] and thus were brought for a collateral purpose, were vexatious and an abuse of process. The proceedings were obviously untenable, manifestly groundless and utterly hopeless.

3 Geographe Point initially pressed for an order that Mr Corowa’s agent, Mr Oshlack, pay its costs of the proceedings on an indemnity basis. This claim was made having regard to the matters summarised in para (4) above and a conversation referred to in an affidavit of Mr Posma sworn 8 May 2007. Mr Posma was not available for cross-examination about the contents of his affidavit, despite Mr Oshlack’s request to that effect. Accordingly, Mr Posma’s affidavit was not admitted into evidence. Geographe Point did not thereafter press for any costs order against Mr Oshlack.

4 The Council submitted that:

(1) The Council had limited its submissions to the claims against the validity of the consent and construction certificate.

(2) There were no circumstances displacing the usual order as to costs, the purpose of which was compensatory.

(3) There was no evidence that Mr Corowa was representing any wider element of the public interest. Mr Corowa’s affidavit of 14 May 2007 did not provide such evidence as it merely identified his reasons for commencing the proceedings. The public interest element in these proceedings would be common to many judicial review proceedings in this Court. In any event, Mr Corowa’s affidavit disclosed a personal interest in the outcome of the proceedings, albeit absent any prospect of pecuniary gain.

(4) Litigants espousing the public interest do not have any immunity from costs orders and are not entitled to a “free kick” in litigation ( Oshlack v Richmond River Shire Council (1998) 193 CLR 72 at [134.6] per Kirby J). The circumstances were no different from those dealt with by Talbot J in Kennedy on Behalf of the Sandon Point Aboriginal Tent Embassy vThe Director-General of the National Parks and Wildlife Service and Another (No 2) (2002) 122 LGERA 84.

5 Mr Oshlack submitted that:

(1) Mr Corowa’s affidavit established that he brought the proceedings in the public interest and not for any private gain. Mr Corowa is a leader of his people born and raised on the Tweed. Mr Corowa’s mother and other community members had tried to prevent the bulldozers clearing the land. He acted solely to obtain the rehabilitation of the land, which contained an endangered ecological community. He did this for the benefit of the wider community and future generations, indigenous and non-indigenous. Before the clearing, he had not been aware of the consent. Having become aware of the consent through the related marina proceedings, Mr Corowa read the consent and understood it required most of the vegetation on the land to be retained. He relied on the advice of a renowned expert, Dr Phillips, that a species impact statement was required to accompany the development application. Mr Corowa set out all these matters in his affidavit, about which he was not cross-examined.

(2) There was a strong public interest element in the claims and their resolution. The development application and development consent were ambiguous and not able to be understood by an ordinary member of the public. Development consents are public documents and should be able to be understood by all. The consent should have been sufficiently clear that any member of the public could read it and work out the clearing authorised. This is essential having regard to the public participation objects of the Environmental Planning and Assessment Act 1979 (the EPA Act). Section 123 contemplated that members of the public would be involved in ensuring compliance with consents. Clarity was the Council’s responsibility. It was lacking in this case.

(3) There was also a strong public interest in the subject matter of the litigation – namely, the clearing of an admitted endangered ecological community. The scientific evidence in the proceedings disclosed that public interest.

(4) The circumstances in Kennedy were different. Talbot J had found that Mr Kennedy, to a large extent, was the author of his own misfortune.

(5) Mr Corowa’s status an indigenous person was not itself a reason to decline to make an order for costs, but was nevertheless relevant. Encouraging access to justice by indigenous people was consistent with the objects and provisions of the EPA Act. Indigenous people should be encouraged to have involvement in the planning process, as the EPA Act contemplates for all people. This is particularly so in the context of issues involving endangered ecological communities, given the potential for impacts on indigenous lifestyles.

(6) The facts were very similar to those in Oshlack and disclosed that the proceedings had been brought in the public interest and involved special circumstances, having regard to the above matters.

(7) If successful in defending the respondents’ claims for costs, the Court should order the respondents’ to pay the applicant’s costs for the hearing on costs. Further, as Geographe Point has abandoned its claim that Mr Oshlack be ordered personally to pay its costs, it should be ordered to indemnify Mr Oshlack for his costs in connection with that claim irrespective of the outcome of the respondents’ applications for costs.

6 Section 69 of the Land and Environment Court Act 1979 provides that costs are in the discretion of the Court and the Court may determine by whom and to what extent costs are to be paid. This discretion is to be exercised having regard to the “important principle” that considerations of fairness usually mean that a successful party in litigation should be compensated for the expenses it has incurred (Oshlack at [67]). This does not mean that other considerations are irrelevant. Courts have declined to make costs orders in certain matters where satisfied that the proceedings have been brought in the public interest and where special or additional circumstances otherwise warrant a departure from the important principles embodied by the “usual order as to costs” (see, for example, Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236, Plumb v Penrith City Council and Another (2003) 126 LGERA 109 and Engadine Area Traffic Action Group Inc v Sutherland Shire Council and Another (No 2) (2004) 136 LGERA 365). These decisions, and others, also disclose the caution with which courts depart from the usual order as to costs (see, for example, Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254, Botany Bay City Council v Minister for Planning & Anor (No 2) [2006] NSWLEC 718, Save the Ridge Inc v Commonwealth and Another (2006) 230 ALR 411 and South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 101 LGERA 114).

7 Without repeating the matters traversed in my principal reasons (Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121), I consider the following matters of particular significance in assessing the competing arguments with respect to costs. At the outset, however, I note that I do not accept Geographe Point’s submission that the whole proceedings were untenable, groundless and hopeless. The primary claim with respect to the need for a species impact statement, although ultimately unsuccessful on the whole of the evidence, was “eminently arguable” (Oshlack v Richmond River Shire Council and Iron Gates Development Pty Ltd (1994) 82 LGERA 236 at 245).

8 Mr Corowa’s primary claims were based on the status of the vegetation on the land as an endangered ecological community as defined in the Threatened Species Conservation Act 1995 (a fact agreed in the proceedings). The objects of that Act (s 3) and the EPA Act (s 5(a)(iv)) disclose the legislative focus on ensuring appropriate assessment of the impacts of human actions on threatened species, populations and ecological communities. Accordingly, there is a public interest element inherent in proceedings of this nature. I accept that Mr Corowa had nothing to gain from the proceedings other than preventing further clearing of the endangered ecological community and having the cleared part rehabilitated. The fact that Mr Corowa had a long association with and personal interest in the Tweed area is not evidence to the contrary. I also accept that Mr Corowa brought the proceedings to vindicate his belief that the respondents had acted in breach of the law by, respectively, granting the consent absent a species impact statement and carrying out the clearing.

9 However, there was substantial delay between the grant of the consent, its notification under s 101 of the EPA Act and the commencement of the proceedings. The Council granted the consent in January 2005. It notified the grant of the consent in February 2005. Notification was made in the Tweed Link, a Council newspaper issued to all houses within its local area. The Council granted the construction certificate in March 2006. The clearing was carried out in October 2006. The proceedings were commenced in November 2006. Mr Corowa’s affidavit discloses that he became aware of the subdivision consent as a result of the clearing during the course of the marina proceedings. Although this does not support Geographe Point’s submission that the proceedings were part of a campaign against the proposed extension of the Chinderah marina and thus brought for a collateral purpose, it discloses an absence of concern sufficient to warrant any action by any member of the public for a period of more than eighteen months with respect to a development consent authorising the residential subdivision of the land.

10 Accordingly, although these proceedings have a public interest character, the facts are not analogous to those in Oshlack, Engadine or Plumb where there was incontrovertible evidence of a very high level of public scrutiny and interest in the dispute. The evidence of public interest in the Chinderah marina development (the subject of decision in Milne) related to a different development application and cannot be used to characterise the nature of the present proceedings. In any event, the public interest character of litigation alone is not sufficient to warrant departure from the usual order as to costs (Engadine at [18] and [19]).

11 Resolution of novel and significant issues of law in Oshlack, Plumb and Engadine was an important factor informing the departure from the usual order as to costs. The present case, in contrast, did not involve issues reasonably capable of the description “novel…of much general importance and some difficulty” (Save the Ridge at [12]). While some of the issues were difficult to resolve, they were resolved within the legal parameters established by existing authority. Difficulties in construing development consents, while regrettable, are not novel. The construction issues were also resolved by reference to established principles and had no significance greater than the immediate case. Accordingly, while it is undoubtedly important that development consents be prepared in a manner readily able to be understood by all, this submission does not transform the litigation from one resolved on a conventional basis into one warranting departure from the usual costs order. Similarly, while I accept that the circumstances are not analogous to those considered by Talbot J in Kennedy, this does not speak against application of the important principles of fairness underlying the usual order as to costs. The fact that Mr Corowa is an indigenous person also does not point to any different conclusion. The open standing provisions in s 123 of the EPA Act apply equally to all members of the community.

12 The notion, express in Mr Corowa’s affidavit and somewhat more muted in Mr Oshlack’s submissions, that the community was “tricked” by the consent and the consent protected by a “technicality” is misconceived. The consent did raise issues of construction but, as I have said, that is not novel. The protection afforded to a development consent by a notice published in accordance with s 101 of the EPA Act is not a “technicality”. Section 101 is as much a part of the legislative scheme as the open standing provisions in s 123 and has its own important and legitimate role to play in the scheme of environmental planning in New South Wales. It would be wrong to assess the competing submissions on costs assuming that the operation of s 101 was illegitimate or a mere technicality.

13 There are two further matters that need to be considered. First, the role of the Council in the proceedings. Secondly, the abandoned claim against Mr Oshlack for indemnity costs.

14 Gaudron and Gummow JJ, in Oshlack, observed that in a significant number of proceedings under s 123 of the EPA Act it will be “entirely appropriate for, if not incumbent upon, the local government authority not to assume the position of a protagonist and to avoid incurring substantial costs” (at 46]). Pearlman J, in Plumb, gave weight to this consideration when rejecting a council’s application for costs (at [25]). In contrast to Plumb, Mr Corowa’s claims extended beyond the species impact statement to the Council’s consideration of the development application. The Council limited its involvement to the issues of validity of the consent and construction certificate. I do not consider that limited involvement amounts to disentitling conduct on the Council’s part given the nature of the claims made against the Council.

15 Geographe Point withdrew its claim for an indemnity costs order after I refused to admit Mr Posma’s affidavit into evidence, Mr Posma not being available for cross-examination. Mr Oshlack claimed that he should be indemnified with respect to the withdrawn claim as he attended before the Court not only to defend Mr Corowa, but also to defend himself. However, it is clear that Mr Oshlack’s attendance was necessary to deal with the claims against Mr Corowa. Mr Oshlack did not identify any costs, expenses or disbursements that he incurred in dealing with the withdrawn claim against him that would not otherwise have been incurred by reason of his appointment as Mr Corowa’s agent for the purpose of the proceedings under s 63 of the Land and Environment Court Act 1979. The withdrawal of the claim, in circumstances where Mr Posma’s evidence was not admitted, was appropriate. There are insufficient grounds to make any order in Mr Oshlack’s favour.

16 For these reasons, I am not satisfied that there are sufficient grounds to warrant departure from the usual order as to costs.

17 Accordingly, I make the following orders:

(1) The applicant is to pay the respondents’ costs of the proceedings (including with respect to the hearing on costs) as agreed or assessed.

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