Friends of Gardiner Park Inc v Bayside Council (No 2)

Case •

[2022] NSWLEC 61

•

18 May 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Friends of Gardiner Park Inc v Bayside Council (No 2) [2022] NSWLEC 61
Hearing dates: On the papers
Date of orders: 18 May 2022
Decision date: 18 May 2022
Jurisdiction:Class 4
Before: Preston CJ
Decision:

The Court orders:

(1)     The applicant is to pay the respondent’s costs of the hearing on 9 and 10 December 2020 of the notice of motion filed on 24 November 2020 for interlocutory injunctive relief, as agreed or assessed, but not otherwise of the proceedings or of the application for costs of the proceedings.

Catchwords:

COSTS – public interest litigation – judicial review – upgrade of sporting fields in heritage-listed park – proceedings unsuccessful – whether proceedings brought in the public interest – whether unreasonable conduct of litigation – interlocutory application extended unreasonably – no order as to costs except for part of interlocutory application

Legislation Cited:

Environment and Planning Assessment Act 1979 Part 4, Part 5, ss 5.4, 5.5

Land and Environment Court Rules 2007 r 4.2

Rockdale Local Environmental Plan 2011 cll 2.7, 5.10

State Environmental Planning Policy (Infrastructure) 2007 cll 65, 111

Uniform Civil Procedure Rules 2005 rr 1.7, 42.1

Cases Cited:

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91; [2011] FCAFC 84

Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 3) [2020] NSWLEC 150

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59

Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434

Friends of Gardiner Park Inc v Bayside Council [2020] NSWLEC 176

Friends of Gardiner Park Inc v Bayside Council [2022] NSWLEC 22

Hunter Development Corporation v Save Our Rail NSW Inc (No 2) (2016) 93 NSWLR 704; (2016) 220 LGERA 73; [2016] NSWCA 375

Local Democracy Matters Inc v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (No 2) [2021] NSWLEC 147

Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216

Palm Beach Protection Group Incorporated v Northern Beaches Council (2020) 250 LGERA 212; [2020] NSWLEC 156

People for the Plains Inc v Santos NSW Eastern Pty Ltd (No 2) [2017] NSWCA 157

Category:Costs
Parties: Friends of Gardiner Park Inc (Applicant)
Bayside Council (Respondent)
Polytan Asia Pacific Pty Ltd t/as Polytan (Second Respondent)
Representation:

Counsel:
Mr T Poisel (Applicant)
Mr A Galasso SC; M Astill (First Respondent)
Submitting appearance (Second Respondent)

Solicitors:
Holding Redlich (Applicant)
HWL Ebsworth (First Respondent)
Bartier Perry (Second Respondent)
File Number(s): 2020/334247
Publication restriction: Nil

Judgment

  1. A community action group, Friends of Gardiner Park Inc (the Friends), has been unsuccessful in proceedings to judicially review the decision of Bayside Council (the Council) to upgrade the sports fields in Gardiner Park: Friends of Gardiner Park Inc v Bayside Council [2022] NSWLEC 22.

  2. The Council seeks an order that the Friends pay its costs of the proceedings. Alternatively, the Council seeks a limited costs order that the Friends pay the Council’s costs of the unsuccessful application for an interlocutory injunction to restrain the carrying out of the upgrade works: Friends of Gardiner Park Inc v Bayside Council [2020] NSWLEC 176. The Friends submitted that the Court should exercise its discretion under rule r 4.2(1) of the Land and Environment Court Rules 2007 (LEC Rules) not to make an order for the payment of costs in relation to the proceedings or the application for interlocutory injunctive relief.

  3. I am satisfied that the proceedings have been brought in the public interest and that in the particular circumstances an order for the payment of costs against the unsuccessful applicant, the Friends, should not be made in relation to the proceedings generally, but should be made in relation to two of the three days of the hearing of the unsuccessful application for interlocutory injunctive relief.

The rules governing orders as to costs

  1. I recently summarised the rules governing orders as to costs in proceedings in Class 4 of the Court’s jurisdiction that have been brought in the public interest in Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (No 2) [2021] NSWLEC 147 at [3]-[12]. I adopt that summary.

  2. The usual order for costs in proceedings in Class 4 of the Court’s jurisdiction is “to order that costs follow the event” (r 42.1 of the Uniform Civil Procedure Rules 2005 (UCPR)). The expression “follow the event” refers to the practical result of a particular claim. In the present case, the result was the dismissal of the Friends’ judicial review claim.

  3. The usual order for costs, provided for in UCPR r 42.1, is subject to the local rule in r 4.2(1) of the LEC Rules, as the latter prevails over the former (UCPR r 1.7). Rule 4.2(1) of the LEC Rules provides:

“The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.”

  1. Application of r 4.2(1) of the LEC Rules involves the Court making two decisions: first, deciding whether it is satisfied that the proceedings have been brought in the public interest and, if so, exercising the discretion as to whether or not to make an order for the payment of costs against the unsuccessful applicant.

  2. In making the first decision of whether the proceedings have been brought in the public interest, the Court ordinarily will look for something more than the unsuccessful applicant’s bare assertion that the proceedings have been brought in the public interest; that assertion must be established in the particular circumstances of the case: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 (Caroona Coal) at [47]-[49]. Courts have identified various considerations or factors that indicate that the proceedings have been brought in the public interest. They include the five considerations identified by Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434 (Engadine) at [15] and the five factors I identified in Caroona Coal at [60].

  3. These considerations and factors should not be regarded as “fixed criteria” for the characterisation of litigation as having been brought in the public interest: Caroona Coal at [41]; Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 at [83]. Rather they are considerations or factors which, if answered in a particular way, may indicate that the proceedings have been brought in the public interest. Not all of these considerations or factors need to be answered in a particular way in order to characterise the proceedings as having been brought in the public interest: Caroona Coal at [46]. Furthermore, other matters may also be relevant to consider: Caroona Coal at [41].

  4. In making the second decision of how to exercise the discretion, the Court may have regard to countervailing considerations that support the Court not exercising the discretionary power to decline to make the usual costs order. Most of the countervailing considerations identified in the cases concern the conduct of the unsuccessful applicant, including any unreasonableness in the applicant’s conduct of the litigation: see the summary in Caroona Coal at [61].

The Friends’ argument that no order for costs should be made

  1. The Friends submitted that the proceedings should be characterised as having been brought in the public interest and the Court should exercise its discretion not to make an order that the Friends pay the Council’s costs of the proceedings. The Friends submitted that application of the five considerations in Engadine and three of the factors in Caroona Coal indicates that the proceedings have been brought in the public interest.

  2. Starting with the first consideration in Engadine, the Friends submitted that the public interest served by the litigation was to protect the heritage, recreational and amenity values of Gardiner Park. Mr Brownbill, the President of the Friends, explained in his affidavit of 19 April 2022 that the Friends was formed as a non-for-profit community group as a result of residents’ concerns over the Council’s plans to carry out works at the heritage-listed Gardiner Park. The proceedings were commenced for the purpose of protecting the heritage values of the park, which the Friends feared would be eroded by the works the Council proposed to undertake at the park. These works included not only those that were the particular subject of the grounds of challenge finally determined by the Court, including works to the steps, pitch, pipe and pits, but also the works of replacing the grass turf field with a synthetic turf field that were raised in the application for interlocutory injunctive relief and in the Friends’ public campaign.

  3. The Friends were concerned that the synthetic field would undermine the heritage values of Gardiner Park, including the flexibility of the use of the park as an open recreational space to be enjoyed by families for cricket and other sports. Historically, cricket was the first organised sport played at Gardiner Park and contributed to the heritage value of the park. The laying of the synthetic field and covering of the cricket pitch displaced this historical sporting use of the park. That the laying of the synthetic field did not form part of the three grounds of challenge finally pressed in the amended summons was a reflection only that no legal error was raised concerning the laying of the synthetic field, not that this was not a motivating concern in the Friends bringing the proceedings. The issue of the loss of the cricket pitch, by its being covered by soil and synthetic turf, was still pressed in two of the three grounds at the substantive hearing.

  4. More generally, Mr Brownbill said that, in bringing the proceedings, the Friends were trying to protect the overall community interest across New South Wales in relation to councils conducting works and demolition in parks without community input and proper heritage assessment.

  5. As to the second Engadine consideration, the Friends submitted that the public interest is wider, involving a significant number of members of the public. According to Ms Carver, the Vice President of the Friends, in her affidavit dated 11 March 2022, the Friends have 40 paid up members and in excess of 200 residents who receive email updates and actively participate in the Friends’ activities. Members of the Friends include residents who live in the locality surrounding Gardiner Park and within the wider community of the suburb of Banksia. The Friends’ activities have attracted significant community support. An online petition objecting to the Council’s upgrade works at the park received 411 signatures. A letter of concern to the Council dated 30 October 2021 attached 96 signatures of concerned residents. The Friends have worked with other community and environmental groups concerned about protecting community land and public parks. The Friends’ activities to protect Gardiner Park has attracted media coverage.

  6. As to the third Engadine consideration, the Friends submitted that the proceedings, being judicial review proceedings, did seek to enforce public law obligations. Each of the grounds of review concerned the proper discharge of the Council’s obligations under the Environmental Planning and Assessment Act 1979 (EPA Act). The first ground concerned whether the Council was required, in order to lawfully undertake the works, to obtain development consent under Part 4 of the EPA Act, rather than an approval under Part 5 of the EPA Act as the Council had done. The second ground concerned the adequacy of the environmental assessment under Part 5 of the EPA Act of the upgrade works as originally proposed, while the third ground concerned the adequacy of the environmental assessment of the modified activity.

  7. The Friends submitted that the enforcement of public law obligations and the correct application of planning and environmental laws have a prima facie public character: Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 3) [2020] NSWLEC 150 at [78].

  8. As to the fourth Engadine consideration, the Friends submitted that the prime motivation of the litigation was to uphold the public interest earlier identified and the rule of law. The Friends submitted that it is important that not-for-profit community groups, such as the Friends, have access to justice in order to uphold the public interest in environmental protection and enforce compliance with public law obligations under the EPA Act.

  9. As to the fifth Engadine consideration, neither the Friends as a community group nor any member of the Friends had a pecuniary interest in the outcome of the proceedings. Although some members of the Friends live near the park and their amenity might have been protected if the Court had restrained the Council undertaking the upgrade works, there was no financial gain for them in the Friends bringing the proceedings.

  10. Turning to the first of the five factors in Caroona Coal, the Friends submitted that the proceedings involved novel issues of general importance. Ground 1 concerned whether the works in relation to the steps, pitch, pipe and pits involved demolition requiring development consent under Part 4 of the EPA Act. This ground turned on the proper construction of cl 65(3) of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) that permitted certain development to be carried out without consent and its interrelationship with the Rockdale Local Environmental Plan 2011 (RLEP) that required development consent for demolition. The issues of construction raised by this ground had not been determined by previous decisions of the Court.

  11. Grounds 2 and 3 contended that, if the Council’s upgrade works needed to be assessed under Part 5 of the EPA Act, the assessment undertaken by the Council had miscarried. Ground 2 contended that the Council’s assessment of the heritage impacts of the activity miscarried, in breach of s 5.5(1) of the EPA Act, because the Council had failed to assess the impacts on the heritage significance of the park as a whole, rather than only on certain features or structures in the park that were of heritage significance. Ground 3 contended that the Council’s assessment of the modification of the activity miscarried, in breach of s 5.5(1) of the EPA Act. This ground involved the proper construction and application of s 5.4 of the EPA Act and in particular paragraph (a) concerning a modification of an activity that will reduce its overall impact.

  12. The Friends submitted that, although its challenge on these three grounds was unsuccessful, the Court’s adjudication of the grounds did elucidate the relevant statutory provisions and raise matters of importance in doing so: Local Democracy Matters Inc v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140 at [57].

  13. As to the second factor identified in Caroona Coal, the Friends submitted that the litigation has contributed in a material way to the proper understanding, development and administration of the law, for similar reasons to those it advanced for the first factor. The Court’s judgment has clarified the scope of cl 65(3) of the Infrastructure SEPP and given certainty to councils in relation to the development that may be carried out without development consent pursuant to the Infrastructure SEPP. The judgment also clarified the requirements of Part 5 of the EPA Act and in particular s 5.4. The judgment is the first decision considering the scope of the modification of activities under s 5.4 of the EPA Act.

  14. As to the fifth factor in Caroona Coal, the Friends reiterated that there was no financial gain to the Friends or their members in bringing the proceedings.

  15. Having established that the proceedings have been brought in the public interest, the Friends submitted that there are no relevant countervailing circumstances that would speak against the Court departing from the usual costs order. The Friends disputed that the two considerations advanced by the Council were countervailing considerations.

  16. First, the Friends submitted that they did not act unreasonably in pursuing grounds that had no merit. Although the three grounds pleaded in the amended summons were ultimately unsuccessful, this did not mean that the Friends case was weak. The three grounds run at the hearing were reasonably arguable and there is nothing in the judgment to suggest otherwise.

  17. Secondly, the Friends submitted that they did not act unreasonably in their conduct of the litigation. The only unreasonable conduct advanced by the Council concerned the Friends’ conduct in applying for an interlocutory injunction to restrain the Council from carrying out the upgrade works.

  18. The Friends submitted that, although the application for interlocutory injunctive relief was dismissed, the bringing of the application did result in the Council giving an undertaking to the Council “not to demolish or remove the heritage items (as specified in [50]) referred to above (at [53]) pending the final determination of the proceedings” (at [75] of Pepper J’s judgment). The “heritage items” specified in [50] were the stairs, pipe and pitch that were the subject of ground 1 in the substantive proceedings. In [53], Pepper J recorded that the Council was prepared to undertake not to remove or demolish these heritage items pending final determination of the substantive proceedings “no doubt for these reasons”, referring to the reasons given in [50]-[52] of the judgment. Pepper J found that serious questions arose that each of the heritage items was not a “building”, so that cl 65(3)(c) of the Infrastructure SEPP was not engaged (at [51]), and that the whole of Gardiner Park was a heritage item and that the “heritage items” were located within the park itself, providing another reason why cl 65(3)(c) was not engaged (at [52]).

  19. In these circumstances, the Friends submitted that they did achieve some success in bringing the application for the interlocutory injunctive relief. As a consequence, it cannot be said that the Friends' conduct in bringing the application for interlocutory relief was unreasonable.

The Council’s argument that costs should be ordered against the Friends

  1. The Council submitted that the proceedings were not brought in the public interest but, in any event, there were countervailing circumstances that would justify not departing from the usual order as to costs.

  2. The Council submitted that the proceedings did not meet the considerations or factors identified in Engadine and Caroona Coal for the proceedings to be characterised as having been brought in the public interest. First, the Council submitted that the proceedings had no discernible objective that related to the protection of the environment or the public interest. At a general level, the activity sought to be restrained involved the upgrade of a suburban park that had been used for the playing of several organised sports for decades. Such use of the park would continue regardless of the upgrade works. Although when the proceedings were commenced, there was an allegation that the installation of synthetic turf would have a deleterious environmental impact, and that issue was raised in the application for interlocutory injunctive relief, this issue was not pursued in the three grounds raised in the amended summons that the Friends argued at the substantive hearing.

  1. The Friends did not identify any adverse environmental consequence resulting from the Council breaching the EPA Act in the ways raised in these three grounds. Ground 1 concerned the proper legal process for approving the upgrade works, whether consideration and grant of development consent for development under Part 4 or assessment and grant of approval for an activity under Part 5 of the EPA Act. The Friends did not suggest that assessment under Part 4 rather than Part 5 would have been more stringent or achieve a better environmental outcome or achieve a different outcome. Ground 2 concerned whether the Council’s consideration of the heritage impacts of the upgrade works miscarried by concentrating on the features and facilities that did have heritage significance rather than looking at the park as a whole. Again, the Friends did not identify any adverse environmental consequence of the Council doing this. Ground 3 concerned whether the Council had failed to assess the environmental impacts of the modified activity. However, there was no identified environmental harm said to have resulted from this alleged failure.

  2. In result, the Council submitted that the litigation was not brought to protect the environment in any real sense, but even if it was, the environment sought to be protected was not of significant value or importance.

  3. Secondly, the Council submitted that the three grounds raised in the amended summons did not break any new ground of legal principle. Ground 1 failed on the application of the principles for the characterisation of an activity under cl 65(3)(a) and cl 111(1) of the Infrastructure SEPP. Ground 2 failed on the facts, the evidence not revealing that the Council had misconstrued or misapplied the heritage listing of Gardiner Park. Ground 3 also failed on the facts and perhaps also because of the Friends’ misunderstanding of the correct operation of Part 5, particular s 5.4 and s 5.5 of the EPA Act. The proceedings did not, therefore, raise any novel issue of general importance or contribute in any material way to the proper understanding, development or administration of the law.

  4. Thirdly, the Council submitted that the nature, identity and objects of the Friends as an organisation do not assist in establishing that the proceedings were brought in the public interest. The fact that an applicant may have been incorporated as an association with objects that include the protection of the environment does not of itself warrant the conclusion that the litigation is public interest litigation: People for the Plains Inc v Santos NSW Eastern Pty Ltd (No 2) [2017] NSWCA 157 at [38] and see also Hunter Development Corporation v Save Our Rail NSW Inc (No 2) (2016) 93 NSWLR 704; (2016) 220 LGERA 73; [2016] NSWCA 375 at [69].

  5. Fourthly, the Council submitted that the prime motivation of the Friends in bringing the proceedings was not the three grounds they ultimately pressed, but the removal of the synthetic turf and reinstatement of the park to its original condition. That was the main concern of the Friends in their public campaign against the upgrade works and in the application for interlocutory injunctive relief. Only after that argument was rejected on the application for interlocutory injunctive relief did the Friends amend their summons to press the three grounds, but those three grounds did not raise this argument.

  6. Fifthly, the Council submitted although the Friends have no pecuniary interest in the outcome of the proceedings, and there was no financial gain in bringing the proceedings, the Friends’ motivation was to substitute its view as to how the park should be managed and developed for the view of the Council.

  7. Finally, the Council submitted that the proceedings always had poor prospects of success. The Friends failed to establish that there were serious questions to be tried as the proceedings were originally pleaded as Pepper J found. As amended, the grounds argued at the substantive hearing were without sufficient evidentiary foundation and were weak. The Council submitted that, having regard to the poor prospects of success, the proceedings should not have been brought but, as they have been brought, the Friends should not be absolved from the usual costs consequences: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91; [2011] FCAFC 84 at [23].

  8. In the alternative, even if the proceedings could be characterised as having been brought in the public interest, the Council submitted that there were two countervailing considerations. The first was that the Friends acted unreasonably in bringing proceedings that had poor prospects of success. As originally pleaded, the proceedings were hopeless and as amended, the grounds were without sufficient evidentiary foundation and were weak.

  9. The second countervailing circumstance was the unreasonable manner in which the Friends conducted their application for interlocutory injunctive relief. The judge hearing and determining that application, Pepper J, was critical of the manner in which the then legal representatives of the Friends conducted the motion: at [4]-[5] of Pepper J’s judgment. Pepper J considered that, if the Friends were to be ultimately unsuccessful in the proceedings, “the cost of the additional two days of hearing required by Friends’ ill preparedness ought not be visited upon the Council” (at [5]). The application for interlocutory injunctive relief had been listed for a one day hearing, on 7 December 2020, but in the end the hearing took three days, being 7, 9 and 10 December 2020. The additional two days referred to by Pepper J was this increase from one to three days of hearing.

The proceedings have been brought in the public interest

  1. I am satisfied that the proceedings have been brought in the public interest, so as to engage r 4.2(1) of the LEC Rules. Although the considerations identified in Engadine and the factors identified in Caroona Coal should not be regarded as fixed criteria or exhaustive, they do assist in characterising the nature of proceedings and the purpose for which they have been brought.

  2. Starting with the first consideration in Engadine, the aspect of the public interest sought to be forced by the Friends’ proceedings was compliance with the public law obligations under the EPA Act to ensure environmental protection: Caroona Coal at [63]. This aspect of the public interest risks being unrepresented, or at least underrepresented, in the courts, as I noted in Caroona Coal at [64]. Facilitating access to justice to ensure this aspect of the public interest is represented in the courts is one justification for r 4.2(1) of the LEC Rules enabling departure from the usual costs order: Caroona Coal at [36], [40].

  3. As to the third consideration in Engadine, the proceedings brought by the Friends clearly sought to enforce public law obligations to ensure the protection of the environment. The proceedings sought to judicially review the Council’s decisions to approve the original activity and the modified activity to upgrade the sporting fields at Gardiner Park. At the heart of the challenge was whether the Council followed the correct legal process for assessing and approving the upgrade works. The legislative architecture of the EPA Act, requiring consideration and consent for development under Part 4 or assessment and approval of activities under Part 5, is deliberate and matters. It is in the public interest to ensure that the correct legal process under the EPA Act is followed.

  4. Ground 1 of the Friends’ challenge sought to enforce this public law obligation that the Council follow the correct legal process, which the Friends contended required consideration and consent under Part 4 and not assessment and approval under Part 5 of the EPA Act. If, however, assessment under Part 5 was required, grounds 2 and 3 sought to enforce compliance with the public law obligations in Part 5 of the EPA Act to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment” by reason of both the original activity and the modified activity (s 5.5(1) of the EPA Act). This obligation is pivotal to the proper working of Part 5: Palm Beach Protection Group Incorporated v Northern Beaches Council (2020) 250 LGERA 212; [2020] NSWLEC 156 at [260]. Ground 2 contended that this obligation was breached by the Council’s consideration of the heritage impacts of the activity miscarrying. Ground 3 contended that the obligation was breached by the Council failing to consider under s 5.5(1) the environmental impacts of the modified activity.

  5. All three grounds, therefore, were directed to enforcing important public law obligations under the EPA Act.

  6. As to the fourth consideration in Engadine, the prime motivation for the Friends bringing the proceedings was to uphold this public interest in the protection of the environment by enforcing these public law obligations and thereby to uphold the rule of law. A critical aspect of the rule of law is that governments adhere to the law; here, that the Council comply with the public law obligations under the EPA Act. That this was the primary motivation of the Friends is evident from the affidavit evidence of the President and Vice President of the Friends.

  7. Although the Friends raised concern about the component of the Council’s upgrade works involving replacing the grass turf with synthetic turf on the playing fields, in both their public campaign and in their application for interlocutory injunctive relief, this does not detract from their motivation being to enforce public law obligations and to uphold the rule of law. The Friends sought initially to plead that this component of the upgrade works breached public law obligations, but this claim was rejected at the claim for interlocutory injunctive relief. The Friends thereafter amended their claim to press other grounds as to how the upgrade works breached public law obligations under the EPA Act. This involved a change in the way the Friends claimed that public law obligations were breached, but left unchanged that the proceedings were directed to enforcing public law obligations under the EPA Act.

  8. These three considerations in Engadine lead to the first two factors identified in Caroona Coal, that the litigation raises one or more issues of general importance and that the litigation has contributed in a material way to the proper understanding, development or administration of the law.

  9. Ground 1 raised as issues the proper construction and application of cl 65(3) and cl 111(1) of the Infrastructure SEPP and the interrelationship of these provisions with the provisions of the RLEP. The Court’s adjudication of this ground has contributed to a better understanding and administration of the law by explaining the proper construction and application of cl 65(3) of the Infrastructure SEPP (see at [71]-[79]) and cl 111(1) of the Infrastructure SEPP (at [80]-[83]), as well as of the concept of demolition of a building or work in cl 2.7 of the RLEP and of a heritage item in cl 5.10(2)(a) of the RLEP (see at [84]-[87]). Grounds 2 and 3 raised as issues the adequacy of the environmental assessment of the original activity and the modified activity of s 5.5(1) of the EPA Act. Although these grounds were determined primarily on the facts (see [128] for ground 2 and [158]-[160] for ground 3), additional comments were made on the operation of s 5.4 of the EPA Act (see at [161]-[166]). These additional comments were made as the scope and operation of s 5.4 of the EPA Act had not previously been considered by the Court.

  10. Turning to the second consideration in Engadine and the fourth factor in Caroona Coal, the litigation involved a significant section of the public. Whilst the membership of the Friends is itself modest (40 paid up members), larger numbers of people have participated in the Friends’ activities (in excess of 200 people) and have supported the Friends’ campaign (for example 411 people signed the online petition). The Council’s upgrade works would also affect a significant number of members of the public who use Gardiner Park for recreation and sporting activities.

  11. The fifth consideration identified in both Engadine and Caroona Coal is the absence of any pecuniary interest of the Friends or its members in a positive outcome in the proceedings: Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd at [87]. The affidavit evidence of the President and Vice President of the Friends establishes that there was no financial gain for the Friends in bringing the proceedings.

  12. Finally, regarding the third factor identified in Caroona Coal, the Friends brought the litigation to protect the heritage, recreational and amenity values of Gardiner Park. The whole of Gardiner Park was listed as a heritage item, and also contained individual features and facilities of heritage significance. Ground 1 challenged the demolition of the cricket pitch and sought to protect the heritage value in the use of the field for the playing of cricket. Ground 2 challenged the Council’s assessment of the impact of the upgrade works on the heritage value of the park as a whole. Ground 3 challenged the environmental assessment of the modified activity. That these grounds were unsuccessful does not detract from the fact that the litigation was brought to protect the significant heritage, recreational and amenity values of the park.

  13. Having regard to all of these considerations and factors, I am satisfied that the proceedings have been brought in the public interest.

Countervailing considerations

  1. Although my satisfaction that the Friends have brought the proceedings in the public interest engages the power in rule 4.2(1) of the LEC Rules, there still is a discretion as to whether or not to exercise the power to decline to make the usual order for costs. In exercising this discretion, the Court may have regard to any countervailing considerations that support the Court not exercising the power to decline to make the usual order for costs.

  2. In the present case, the Council relied on two countervailing considerations relating to the Friends’ conduct of the litigation. The first was that the Friends had unreasonably pursued grounds of challenge that had no merit and were not eminently arguable: Caroona Coal at [61(e)]. I do not agree. Although I found that the Friends had not established their three grounds of challenge, this did not mean that the Friends acted unreasonably in pleading and arguing these grounds. Each ground raised difficult issues of law and fact, including the proper construction and application of statutory provisions.

  3. The second countervailing consideration raised by the Council was the unreasonable manner in which the Friends conducted the application for interlocutory injunctive relief. The judge who heard and determined the application, Pepper J, found that the then legal representatives of the Friends had acted unreasonably in conducting the application, in the respects identified in [4] of her judgment. The Friends did not seek to dispute these findings concerning the manner in which the then legal representatives conducted the application for interlocutory injunctive relief. Instead, the Friends submitted that the conduct in bringing the application for interlocutory injunctive relief was not unreasonable because the bringing of that application secured the Council giving an undertaking not to demolish what the judge referred to as heritage items.

  4. Based on the findings of Pepper J in [4] and [5] of her judgment, I find there is disentitling conduct of the Friends in the unreasonable manner in which the application for interlocutory injunctive relief was conducted. This unreasonable conduct caused the hearing of the application to be extended from one day to three days. The Council should be compensated for this increased length and hence cost of the hearing of the application for interlocutory injunctive relief by ordering the Friends to pay the costs of the second and third days of the hearing.

  5. I do not find that the Friends otherwise acted unreasonably in bringing the application for interlocutory injunctive relief. As the Friends contended, the Council accepted that at least one of the grounds raised a serious question to be tried and offered an undertaking to the Court not to demolish the steps, pitch and pipe until the final hearing. This undertaking obviated the need for the Court to issue an injunction to restrain demolition of the steps, pitch and pipe. Accordingly, the Friends should not be ordered to pay the Council’s costs of the application for interlocutory injunctive relief, including the first day of the hearing of that application. The only costs the Friends should pay are the costs of the second and third days of the hearing of that application.

Conclusion and orders

  1. I am satisfied that the proceedings have been brought in the public interest and that, except for the Friends’ conduct in extending the length of the hearing of the application for interlocutory injunctive relief, there are no countervailing considerations for not departing from the usual costs order. I therefore consider it is appropriate not to make an order that the Friends pay the Council’s costs of the proceedings, with the exception that the Friends should be ordered to pay the Council’s costs of the second and third days of the hearing of the application for interlocutory injunctive relief, being the hearing on 9 and 10 December 2020.

  2. There should also be no order for costs in relation to this question of the appropriate costs order to be made. The Friends sought for the Court to exercise the discretionary power in r 4.2(1) of the LEC Rules not to make the usual costs order that costs follow the event. The Friends have been successful in obtaining this dispensation from the usual costs order, with one exception concerning the costs of the application for interlocutory injunctive relief. The Council should not be ordered to pay the Friends’ costs of obtaining this dispensation.

  3. The Court orders:

  1. The applicant is to pay the respondent’s costs of the hearing on 9 and 10 December 2020 of the notice of motion filed on 24 November 2020 for interlocutory injunctive relief, as agreed or assessed, but not otherwise of the proceedings or of the application for costs of the proceedings.

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Decision last updated: 18 May 2022

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