Hanave Pty Ltd v Waverley Council (No 2)

Case •

[2025] NSWLEC 65

•

27 June 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Hanave Pty Ltd v Waverley Council (No 2) [2025] NSWLEC 65
Hearing dates: Submissions filed 8 and 22 April and 1 May 2025
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction:Class 4
Before: Pritchard J
Decision:

The Court makes the following orders:

(1) Pursuant to r 4.21 of the Uniform Civil Procedure Rules 2005, the respondents to pay the applicants’ costs of proceedings 2023/323047 insofar as they relate to DA-80/2023 granted 27 September 2023.

(2) Insofar as proceedings 2023/323047 relate to DA-223/2021 granted 27 October 2021, the time to commence the proceedings pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 is not extended to 12 October 2023.

Catchwords:

EXTENSION OF TIME – whether r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) applies – whether valid reason for delay – whether prejudice to respondents

COSTS – respondents seek each party pay their own costs – whether proceedings defended in public interest – whether need for contradictor – whether “something more” – costs follow the event

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Environmental Planning and Assessment Act 1979 (NSW) ss 4.59, 7.32

Environmental Planning and Assessment Amendment Act 2025 No 24 (NSW) Sch 1 cll 37, 38, 46

Environmental Planning and Assessment Amendment Bill 2025 (NSW)

Land and Environment Court Rules 1979 (NSW) r 4.2

State Environmental Planning Policy (Housing) 2021 (NSW) cl 48

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Cases Cited:

Australian Securities and Investments Commission v Rich & Ors (2004) 50 ACSR 500; [2004] NSWSC 836

Bankstown City Council v Ramahi [2015] NSWLEC 74

Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172

Caroona and Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 126 LGERA 365; [2004] NSWLEC 434

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

Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463

Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47

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

Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19

Hume Coal Pty Ltd v Alexander (No 4) [2013] NSWLEC 106

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA

Lou v IAG Ltd (t/as NRMA Insurance) (2019) 101 NSWLR 606; [2019] NSWCA 319

Lu v Walding (No 2) (2021) 249 LGERA 1; [2021] NSWLEC 21

Norman v Central Coast Council [2022] NSWLEC 120

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning [2018] NSWLEC 151

Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

Category:Principal judgment
Parties: Hanave Pty Ltd (First Applicant)
Cadele Pty Ltd (Second Applicant)
Waverley Council (First Respondent)
Waverley Local Planning Panel (Second Respondent)
Representation:

Counsel:
J Lazarus SC and Y Truong (First and Second Applicants)
A Pickles SC and C Koikas (First and Second Respondents)

Solicitors:
Wilshire Webb Staunton Beattie (First and Second Applicants)
Gilbert Mane Solicitors (First and Second Respondents)
File Number(s): 2023/323047
Publication restriction: Nil

JUDGMENT

  1. These judicial review proceedings (2023/323047) were commenced by summons filed on 12 October 2023 (the summons) in which the applicants sought declarations that conditions imposed on two development consents, DA-80/2023 granted 27 September 2023 (the rear DA) and DA-223/2021 granted 27 October 2021 (the front DA) by Waverley Council (Council) (the first respondent) requiring contributions for affordable housing (the affordable housing contribution conditions) were invalid in circumstances where they were not authorised to be imposed under the Waverley Local Environmental Plan 2012 (NSW) (WLEP), as required by ss 4.17(1)(h) and 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

  2. Hanave Pty Ltd (the first applicant) and Cadele Pty Ltd (the second applicant) (together, the applicants) are the joint registered proprietors of land at 241 Bondi Road, Bondi located within the Waverley local government area (the property) to which the two development consents relate.

  3. By their summons filed on 12 October 2024, the applicants sought the following orders:

1. An order pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 that the time to commence these judicial review proceedings relating to condition 11 of the development consent granted by the Second Respondent on 27 October 2021 in respect of development application no. DA-223/2021 (Front DA Consent) lodged on behalf of the First and Second Applicants is extended to the date of the commencement of these proceedings.

2. A declaration that condition 11 of the Front DA Consent is invalid and of no force or effect.

3. A declaration that condition 10 of the development consent granted by the Second Respondent on 27 September 2023 in respect of development application no. DA-80/2023 lodged on behalf of the First and Second Applicant (Rear DA Consent) is invalid and of no force or effect.

4. An order that the Respondents pay the Applicants’ costs of these proceedings.

5. Such further or other orders as the Court thinks fit.

  1. The substantive issues for determination in relation to the rear DA, which were agreed to by the parties at the hearing on 12 June 2024 also pertain to the front DA were:

  1. whether the second respondent was authorised to impose an affordable housing contribution condition in the rear DA consent in circumstances where the WLEP did not, at any relevant time, contain any provision authorising the imposition of such a condition; and

  2. whether, if the affordable housing contribution condition in the rear DA consent is invalid, it can be severed from the rear DA consent.

  1. I heard the proceedings on 12 June 2024, and on 13 March 2025 I delivered judgment, [1] making the following orders (the 13 March 2025 orders) in respect of the rear DA:

The Court:

(1) Declares that condition 10 of the development consent granted by the second respondent on 27 September 2023 in respect of development application no. DA-80/2023 lodged on behalf of the first and second applicant is invalid and of no force or effect.

(2) Orders the respondents to pay the applicants’ costs of these proceedings.

(3) Orders the parties to seek to have the proceedings relisted on a business date by no later than 14 days from the making of these orders for any further directions. Otherwise, the proceedings brought by the applicants are dismissed in their entirety.

1. Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19 (Pritchard J) (the first judgment).

  1. On 25 March 2025, the proceedings were listed for mention following a request of the parties pursuant to order (3) of the 13 March 2025 orders. On that occasion, I made orders for the filing and serving of submissions in relation to any application for leave under r 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR) in relation to the front DA and in respect of costs:

1. The First and Second Respondents file and serve submissions in support of an alternative costs order and any additional submissions in respect of the application for leave under r 59.10 for the Front DA (if necessary), by 8 April 2024.

2. The Applicants file and serve submissions in respect of costs and any reply to the First and Second Respondents submissions in respect of the application for leave for the Front DA by 22 April 2024.

3. The First and Second Respondents file and serve any submissions in reply in respect of any alternative costs order by 29 April 2024.

4. The question of costs be determined on the basis of the written submissions, and the question of leave for the Front DA be determined on the basis of the written and oral submissions previously made to the Court in addition to such further submissions made in accordance with orders 1 and 2 above, with no further appearance.

  1. The relevant background, legislative framework and evidence is set out in the first judgment. I adopt and do not restate here that background, legislative framework and evidence.

Issues

  1. The outstanding issues for determination are:

  1. whether to grant an order pursuant to r 59.10 of the UCPR that the time to commence judicial review proceedings relating to condition 11 of the development consent granted by the second respondent on 27 October 2021 in respect of the front DA lodged on behalf of the applicants on 15 June 2021 is extended to the date of the commencement of these proceedings, namely 12 October 2023; and

  2. whether to depart from the usual costs order pursuant to r 4.21 of the UCPR that costs follow the event and make an order that each party pay its own costs on the basis that the proceedings were defendant in the public interest.

Outcome

  1. For the reasons that follow, I have determined:

  1. not to grant an order pursuant to r 59.10 of the UCPR that the time to commence judicial review proceedings relating to condition 11 of the development consent granted by the second respondent on 27 October 2021 in respect of the front DA lodged on behalf of the applicants on 15 June 2021 is extended to the date of the commencement of these proceedings, namely 12 October 2023; and

  2. to make an order pursuant to r 4.21 of the UCPR that costs follow the event; that is, that the respondents pay the applicants’ costs of the proceedings.

Extension of time

Relevant legislative provisions

  1. Section 4.59 of the EPA Act (previously s 101) provides in relation to the validity of development consents as follows:

4.59 Validity of development consents and complying development certificates (cf previous s 101)

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

  1. Rule 59.10 of the UCPR provides in relation to time for commencing judicial review proceedings as follows:

59.10 Time for commencing proceedings

(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

  1. At the relevant time, namely, 27 October 2021, the date that the rear DA consent was approved (the relevant time), s 4.17(1)(h) of the EPA Act provided as follows in relation to the imposition of conditions of development consent:

4.17 Imposition of conditions (cf previous s 80A)

(1) Conditions—generally A condition of development consent may be imposed if—

…

(h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32.

  1. At the relevant time, s 7.32 of the EPA Act provided as follows in relation to conditions requiring land or conditions for affordable housing (emphasis added):

7.32   Conditions requiring land or contributions for affordable housing (cf previous s 94F)

(1) This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area and—

(a) the consent authority is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, or

(b) the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or

(c) the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site, or

(d) the regulations provide for this section to apply to the application.

(2) Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring—

…

(b) the payment of a monetary contribution to be used for the purpose of providing affordable housing,

…

(3) A condition may be imposed under this section only if—

(a) the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and

(b) the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan, and

(c) the condition requires a reasonable dedication or contribution, having regard to the following—

(i) the extent of the need in the area for affordable housing,

(ii) the scale of the proposed development,

(iii) any other dedication or contribution required to be made by the applicant under this section or section 7.11.

...

  1. Section 98 of the Civil Procedure Act 2005 (NSW) (CPA) provides in relation to the Courts powers as to costs relevantly as follows:

98 Courts powers as to costs (cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34)

(1) Subject to rules of court and to this or any other Act—

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

…

Applicants’ submissions in relation to extension of time

  1. In their written submissions filed on 31 May 2024 ahead of the hearing, the applicants submitted that when s 4.59 of the EPA Act is considered in accordance with the principles discussed by Preston CJ of LEC in Brown v Randwick City Council (Brown v Randwick) [2] or on the approach of Pain J in Lu v Walding (No 2) (Lu v Walding), [3] the provision cannot bar proceedings based on a breach of s 7.32 of the EPA Act, notwithstanding that they will not have been commenced within the three month time period specified in the provision. That is because s 4.59 of the EPA Act will not protect a consent (or in this case a condition of consent) that has been granted (imposed) without any power to do so: see Norman v Central Coast Council (Norman) [4] at [29]-[30] (Pepper J). There, here Honour said:

29. The reasoning in Lu v Walding (No 2) is not entirely consonant with that expressed in Brown and IPM, but the result is the same, namely, that s 4.59 of the EPAA does not prevent the Court from engaging in judicial review of a decision infected by jurisdictional error whether by reason of the application of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 or the Hickman principles.

30. In this case, if, as the parties assert, the Council imposed the condition absent any power to do so under s 4.53 of the EPAA, there is no doubt that the error is one of jurisdiction, and therefore, is amenable to review.

2. (2011) 183 LGERA 382; [2011] NSWLEC 172.

3. (2021) 249 LGERA 1; [2021] NSWLEC 21.

4. [2022] NSWLEC 120.

  1. That said, the applicants submitted, merely because s 4.59 does not prevent the challenge to the relevant condition does not mean in this case that there is no "statutory limitation period for commencing the proceedings" within the meaning of r 59.10(4) of the UCPR. Given that it is common ground that public notice was given in accordance with the regulations, s 4.59 provides the relevant statutory limitation period for commencing the proceedings, in which case r 59.10 does not apply: see Bankstown City Council v Ramahi (Ramahi) [5] at [72] (Preston CJ of LEC). There the chief judge said:

During the hearing of the Council’s motion, I was inclined to think that s 101 of the EPA Act in itself could be described as a statutory limitation period for commencing proceedings for judicial review of a decision to grant a development consent or a complying development certificate, regardless of whether a time limitation period in that section has been made operative by public notice of the decision being given. However, I now think that this view may not be correct. The proceedings to which r 59.10(4) refer are the particular proceedings for judicial review of a decision: the subrule refers to there being a statutory limitation for commencing “the” proceedings, not proceedings in general or proceedings of a particular class. In this case, the proceedings are the proceedings the Council has commenced questioning the validity of the decisions to issue the complying development certificates made by Mr Kayellou. Rule 59.10(4) focusses on whether there is a statutory limitation period for commencing these proceedings. If there is, r 59.10 does not apply but if there is not, r 59.10 does apply.

5. [2015] NSWLEC 74.

  1. And at [73]:

In this case, because no public notice has been given for the purposes of s 101 of the EPA Act of the decisions to issue the complying development certificates, s 101 of the EPA Act does not operate to establish a three month limitation period for commencing proceedings for judicial review of those decisions. This means, for the purposes of r 59.10(4), there will only be a statutory limitation period for commencing proceedings for judicial review of decisions to grant development consent or a complying development certificate if and when public notice of the decisions is given for the purposes of s 101 of the EPA Act.

  1. It follows, the applicants submitted, that no extension of time is necessary in this case as r 59.10 does not apply: r 59.10(4). To the extent that Lu v Walding and Norman hold to the contrary, they were wrongly decided. The applicants accepted that there is a statutory limitation period for commencing these proceedings, but that “it is just that it does not preclude a challenge on the basis identified in the summons”.

  2. At the hearing before me on 12 June 2024, the applicants appeared not to press their submission that “s 4.59 provides the relevant statutory limitation period for commencing the proceedings”. As I set out in the first judgment at [8]-[10], Mr Lazurus submitted for the applicants that it was “common ground … that s 4.59 of the Act cannot bar proceedings commenced outside the three month time period” (footnotes omitted):

8 … Mr Lazarus drew attention to the decision of the chief judge in Brown v Randwick City Council (Brown v Randwick) as authority for the proposition that any jurisdictional error is sufficient to overcome the privative provision in s 4.59 of the EPA Act. In Brown v Randwick at [40] Preston CJ of LEC said that each of the grounds of challenge to the development consent and notification involved jurisdictional error. Section 101 (now s 4.59) was, therefore, ineffective to protect this consent and notification from these jurisdictional errors.

9 Mr Lazarus also referred to the alternative view of Pain J in Lu v Walding (No 2), where her Honour held that s 101 of the EPA Act (now s 4.59) is not invalid in light of the principle in Kirk v Industrial Court of New South Wales (Kirk) but is subject to the principle in R v Hickman; Ex parte Fox and Clinton. Mr Lazarus submitted that in this case on “either approach … s 4.59 doesn’t have the effect of protecting the relevant decision [that is, the decision to grant the front DA consent], notwithstanding the fact that the challenge was brought outside the three-month time period”. Mr Lazarus submitted that r 59.10 of the UCPR does “not apply to proceedings in which there is a statutory limitation period for commencing the proceedings”.

  1. Alternatively, the applicants submitted, under r 59.10, subject to any statutory limitation periods to the contrary, the Court may extend the time for commencing proceedings for judicial review at any time. In determining whether to do so, the Court is to take into account any relevant factors, including those identified in 59.10(3)(a) to (d) which include, inter alia, any particular interest of the applicant in challenging the decision (a); possible prejudice to any persons caused by the passage of time (b); the time at which the applicant became or, by exercising reasonable diligence, should have become aware of the decision (c); and any relevant public interest (d).

  2. However, the applicants submitted that the factors in r 59.10(3) are not exhaustive. Also relevant to the Court's consideration are factors such as the length of the delay, the reasons for the delay, and whether the applicants have a fairly arguable case. [6] While the weight to be given to particular factors will depend on the circumstances of the case and will require the Court to carry out a balancing exercise, the question of potential prejudice to a party caused by any delay is a significant consideration. [7]

    6. Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning [2018] NSWLEC 151 at [49] (Moore J), citing Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34] (Pepper J).

    7. Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning [2018] NSWLEC 151 at [49] (Moore J), citing Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34] (Pepper J).

  3. The applicants submitted for the following reasons that the circumstances of the present case overwhelmingly support the granting of leave:

  1. first, there can be no doubt that the applicants, as the owners of the property, have a real interest in the proceedings. That is particularly in circumstances where the proposed development would no longer be financially viable for the applicants in light of both affordable housing contribution conditions;

  2. second, there would be no prejudice to the respondents if the extension of time were granted. It is not the case that by commencing the proceedings, the applicants are seeking to claw back amounts paid to Council which may have already been used by it. To the contrary, no amounts have been paid to Council by way of contribution pursuant to either development consent;

  3. third, the applicants have a strong case for establishing invalidity of the relevant conditions; and

  4. fourth, while the applicants accept that there has been delay in commencing proceedings in respect of the front DA, that delay arose from representations made by Council regarding the purpose of, and its ability to impose, affordable housing contribution conditions. It is not the case that the applicants simply sat on their hands. Once they became aware of the potential invalidity of the conditions, they acted promptly in commencing these proceedings.

Council’s submissions in relation to extension of time

  1. In its written submissions dated 7 June 2024, Council submitted that r 59.10 of the UCPR applies to the applicants’ challenge to the front DA, and did not agree with the applicants analysis of the decisions in relation to s 4.59 of the EPA Act and r 59.10 of the UCPR, particularly in so far as it is asserted that the effect of the chief judge’s decision in Ramahi is that “there is a statutory limitation period within the meaning of r 59.10(4)”.

  2. The outcome in Ramahi at [73], Council submitted, was that by reason of the absence of public notice, s 101 of the EPA Act (now 4.59 of the EPA Act) did not apply and thus it was necessary to extend time under r 59.10 of the UCPR if the challenge was to proceed. In the same way, but for a different reason, in this case s 4.59 of the EPA Act is no bar to the challenge to the front DA being brought more than 3 months after public notice was given. Here, it is because the challenge is to the jurisdiction of Council to impose the conditions. Such a challenge is not protected by s 4.59 (previously s 101) of the EPA Act by operation of the principle articulated by Latham CJ at 606 in R v Hickman; Fox, Ex p [8] (the Hickman principle):

An authority with a limited jurisdiction cannot give itself jurisdiction by a wrong determination as to the existence of a fact upon which its jurisdiction depends, or by placing a wrong construction upon a statute upon which its jurisdiction depends, unless by a valid provision the authority is given power to act upon its own opinion in relation to the existence of the fact or in relation to the construction of the statute.

8. (1945) 70 CLR 598; [1945] HCA 53.

  1. It follows, Council submitted, that there is no statutory limitation period for commencing these proceedings which means that r 59.10 of the UCPR applied. As discussed above at [19], at the hearing on 12 June 2024, the applicants appeared to accept Council’s submission that there is no statutory limitation period for commencing these proceedings within the meaning of r 59.10(4), meaning that r 59.10 applied.

  2. Further, Council submitted that the Court should not extend time for bringing proceedings challenging the front DA pursuant to r 59.10 for the following reasons:

  1. The delay in bringing proceedings in the case of the front DA is lengthy, in the order of one year and 9 months late.

  2. Although there has been an attempt to explain the delay by alleging that Council had made representations about the ability to impose the contributions, those representations were nothing other than honest representations about the power to impose the contributions under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (SEPP (ARH)). It is not as if Council purported to impose the contributions under the Waverley Local Environmental Plan 2012 (NSW) (WLEP): “Thus, it should have been obvious to the applicants before now that the only basis on which the Council had purported to impose the conditions was on the basis of the SEPP.”

  3. The fact that the applicants had not sought the advice of counsel is of no moment. A director of both applicant companies is a solicitor with experience in planning matters. As a solicitor he would have been familiar with Caselaw and could have found the decision in Balnaves Foundation Pty Ltd v Minister of Planning (No 2) [9] , which pre-dates the front DA by 3 years.

  4. That the application for the rear DA consent was “in part stimulated by the need to undertake a fire safety investigation required by the front DA consent” does not explain why steps were not taken sooner to investigate the lawfulness of the contributions conditions.

  5. While there is no direct prejudice to Council, Council’s role is to protect the public interest, including the retention of affordable housing and the collection of contributions for affordable housing. Had a challenge to the front DA been brought within time, Council may have taken a different approach to the determination of the rear DA.

    9. [2018] NSWLEC 163 (Balnaves) (Pepper J).

  1. Council also relied on its oral submissions recounted at [10]–[11] of the first judgment. As to the applicants’ submission that there is no direct prejudice to Council, there is, Council submitted, a further public interest in the certainty and finality of decisions to grant consents generally. By allowing proceedings to be brought out of time the Court would “open the gates” to other applicants to bring proceedings out of time, challenging the validity of affordable housing contribution conditions during the period of the legislative lacuna, including in circumstances where contributions under other consents have already been paid.

  2. Council submitted that a further element of the public interest relates to the nature of the challenge in this case. Here, the public interest favours the protection of affordable housing and the imposition of conditions for payment of monetary contributions where affordable housing will be lost, as evidenced by the provisions of s 7.32 of the EPA Act and cl 47 and 48 of State Environmental Planning Policy (Housing) 2021 (NSW) (SEPP (Housing)).

  3. By imposing such conditions, Council and the second respondent, Waverley Planning Panel, are not seeking to obtain funds for general revenue, but for the public interest of maintaining the provision of affordable housing. Allowing challenges to conditions of this kind due to a legislative lacuna to be brought out of time would be contrary to the public interest.

Applicants’ supplementary submissions in relation to extension of time and costs

  1. In accordance with the Court’s orders made on 25 March 2025, on 22 April 2025, the applicants filed supplementary submissions in relation to the question of an extension of time and costs. The applicants drew attention to the Court’s findings in the first judgment that the second respondent, Waverley Local Planning Panel, was not authorised to impose the affordable housing contribution condition in the rear DA; and that the affordable housing contribution condition could be severed from the rear DA.

  2. The applicants submitted that it was common ground between the parties that the same issues of construction of cl 15A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (the 2017 regulation) and severance would arise in relation to the affordable housing contribution conditions in both consents. It therefore followed that condition 11 of the front DA is also invalid. Accordingly, the only relevant change of circumstance relevant to the extension of time application was that the case for an extension of time is “now even stronger given the Court has in effect now concluded that the claim for invalidity of condition 11 of the front DA should be upheld”.

  3. The Court would reject Council’s “floodgates” argument in the absence of evidence that other applicants are likely to bring challenges to the imposition of affordable housing contributions. Indeed, the effect of the legislation referred to by Council, namely, a bill that is “before Parliament to correct the defect in the legislation at the heart of these proceedings” would be “to expressly authorise the contributions for affordable housing under SEPP (Housing) 2021 as well as under a Local Environmental Plan” [10] (if passed) retrospective to 1 March 2018. In any event, if such applications were made, each extension of time application would need to be determined on its merits. The Court should not shut the applicants out merely because of the “speculative possibility” that other unidentified applicants might bring their own challenges in circumstances where their extension of time applications might succeed or fail.

    10. Neither the name nor status of the bill were identified by the parties, however the relevant bill and provisions appear to be: cll 37, 38 and 46 of Schedule 1 “Amendment of Environmental Planning and Assessment Act 1979 No 203” to the Environmental Planning and Assessment Amendment Bill 2025 (NSW) (the 2025 EPA Amendment Bill). The 2025 EPA Amendment Bill was passed on 7 May 2025, and assented to on 22 May 2025: Environmental Planning and Assessment Amendment Act 2025 No 24 (NSW) (the 2025 EPA Amendment Act). See cll 37 and 38. The date of commencement of those clauses is 1 March 2018: cl 46.

  4. In relation to the respondents’ submission that the public interest favours the protection of affordable housing and the imposition of conditions for payment of monetary contributions, the applicants submitted that there is an even stronger countervailing public interest in the enforcement of the planning laws of the State. The Court should therefore:

  1. order pursuant to r 59.10(2) of the UCPR that time to commence these judicial review proceedings relating to condition 11 of the development consent granted by the second respondent on 27 October 2021 in respect of the front DA lodged on behalf of the applicants is extended to the date of the commencement of these proceedings, namely 12 October 2023; and

  2. declare that condition 11 of the front DA is invalid and of no force or effect.

Consideration

  1. In relation to the applicants’ application for an extension of time pursuant to r 59.10(2) of the UCPR to commence judicial review proceedings relating to condition 11 of the development consent granted by the second respondent on 27 October 2021, I find as follows:

  1. Insofar as they concern the front DA, the proceedings were not commenced with the three month time period specified in s 4.59 of the EPA Act.

  2. I have found that insofar as they concern the rear DA, the proceedings were concerned with the validity of a condition of the consent granted on 27 September 2023, the relevant condition was invalid and of no force and effect.

  3. At the time of the hearing on 12 June 2024, it was common ground that s 4.59 of the EPA Act did not bar the applicants from bringing the front DA proceedings outside the three month time period specified in s 4.59. As I discussed in the first judgment at [8]-[9] and as the applicants submitted (see [15] above), there is an unresolved question in this Court as to the proper construction of s 4.59 of the EPA Act. The decision of the chief judge in Brown v Randwick is authority for the proposition that any jurisdictional error is sufficient to overcome the privative provision in s 4.59 of the EPA Act: Preston CJ of LEC at [37]-[39] citing Kirk v Industrial Court of New South Wales [11] (Kirk). The chief judge in Brown v Randwick read down s 101 (now s 4.59) of the EPA Act so as to preserve the supervisory jurisdiction of the Court to review for jurisdictional error. [12] The alternative view expressed by Pain J in Lu v Walding (No 2) is that s 101 (now s 4.59) of the EPA Act is not invalid in light of the principle in Kirk, but is subject to the Hickman principle. On either approach, I find in accordance with the applicants’ submissions and Pepper J’s decision in Norman that “the result is the same”, and that s 4.59 of the EPA Act “does not prevent the Court from engaging in judicial review of a decision infected by jurisdictional error”, such as in these proceedings, by reason of the application of Kirk or the Hickman principle. [13]

  4. I likewise accept Council’s submission that the outcome in Ramahi at 73 was that by reason of the absence of public notice, s 101 (now s 4.59) of the EPA Act did not apply, and it was thus necessary to extend time under r 59.10 of the UCPR if the challenge were to proceed. I find that here, by contrast, where the challenge is to the jurisdiction of Council to impose the conditions, such a challenge is not protected by operation of s 4.59, whether by reason of the application of Kirk or the Hickman principle.

  5. Rule 59.10(4) focusses on whether there is a statutory limitation period for commencing these proceedings. If there is, r 59.10 does not apply but if there is not, r 59.10 does apply. As I have found that the statutory limitation period in s 4.59 of the EPA Act does not apply for the purpose of r 59.10(4) of the UCPR, I turn to consider the applicants’ alternative submission that pursuant to r 59.10, the Court may extend the time for commencing judicial review proceedings at any time, having regard to the factors identified in r 59.10(3)(a) to (d) and the other factors identified in the applicants’ submissions, I am not satisfied that this is an appropriate case to exercise the Court’s discretion to grant an extension of time. It is undoubtedly the case that the applicants, as owners of the property, have a real interest in the proceedings, and “a strong case” for establishing the invalidity of the relevant condition. Indeed, it was common ground between the parties that the same issues of construction and severance would arise in relation to the affordable housing contribution condition in both consents. However, I do not consider it to be relevant to the exercise of the Court’s discretion that, as contended by the applicants, “the proposed development would no longer be financially viable for [them] in light of both affordable housing conditions”. Nor do I consider it relevant to the exercise of the Court’s discretion that no amounts have been paid to Council by way of contribution pursuant to either consent.

  6. As to the applicants’ acknowledged delay in commencing proceedings in respect of the front DA, I do not accept that the delay arose from representations made by Council regarding the purpose of, and its ability to impose, affordable housing conditions.

  7. The delay in bringing proceedings in relation to the front DA was in the order of one year and 9 months, not an insignificant delay. Further, whilst there would be no direct prejudice to Council if an extension of time were granted, Council’s role is to protect the public interest, including by the retention of affordable housing and the collection of contributions for affordable housing. There is also a public interest in the certainty and finality of decisions to grant consents.

    11. (2010) 239 CLR 531; [2010] HCA 1.

    12. See Norman v Central Coast Council [2022] NSWLEC 120 at [23]-[28] (Pepper J).

    13. Norman v Central Coast Council [2022] NSWLEC 120 at [29] (Pepper J).

  1. For the foregoing reasons, I have determined not to grant an order pursuant to r 59.10 of the UCPR that the time to commence judicial review proceedings relating to condition 11 of the development consent granted by the second respondent on 27 October 2021 in respect of the front DA lodged on behalf of the applicants on 15 June 2021 is extended to the date of the commencement of these proceedings, namely 12 October 2023.

Costs

The applicants’ submissions in relation to costs

  1. In relation to costs, the applicants submitted that in class 4 judicial review proceedings the starting point is that costs usually follow the event by virtue of r 42.1 of the UCPR. This general rule founds a “reasonable expectation” on the part of a successful party of being awarded costs against the unsuccessful party. [14]

    14. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J), [137] (Kirby J); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

  2. The purpose of the usual rule is compensatory, and in this case the applicants were “forced” to come to Court to vindicate their claim. It would be unjust if they were compelled to pay for their own costs after achieving complete success in the proceedings. Further, the respondents made a deliberate choice to contest the proceedings, and not to file a submitting appearance. That was after they were clearly put on notice by the applicants as to the invalidity of the proposed condition in the rear DA. Contrary to Council’s submissions, there was no evidence that the reason Council decided to defend the proceedings was due to the “potential far reaching consequences of these proceedings on the public interest, and in the absence of any proper contradictor”.

  1. The proceedings were only necessary because of the respondents’ error in imposing invalid conditions in circumstances where (at least in respect of the rear DA) they were put on notice that the proposed condition was invalid, but decided nonetheless to proceed to impose the condition. It was submitted to be a material consideration in relation to the exercise of the costs discretion that the error the subject of the proceedings was caused by a party: Lou v IAG Ltd (t/as NRMA Insurance) (Lou v IAG Ltd ) [15] and Cutcliffe v Lithgow City Council (Cutcliffe). [16] In this case, the error was that of the respondents.

    15. (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44] (Payne JA, Gleeson JA agreeing).

    16. (2006) 147 LGERA 330; [2006] NSWLEC 463 at [50] (Biscoe J) cited in Woollahra Municipal Council v Cameron (No 2) [2024] NSWLEC 66 at [35] (Pritchard J).

  2. Further, the applicants submitted, the respondents’ argument seemed to be premised on the proposition that rule 4.2 of the Land and Environment Court Rules may be applied by analogy where proceedings are defended by a public authority in the public interest, citing Hume Coal Pty Ltd v Alexander (No 4) [17] at [24] (Sheahan J). There were numerous reasons why the Court would reject the attempt to invoke the public interest litigation exception in this case.

    17. [2013] NSWLEC 106 (Sheahan J).

  3. First, the order sought by the respondents would be “unprecedented”, they not having been able to cite “a single case in this jurisdiction or elsewhere in the environmental law sphere” where a successful applicant was deprived of an order for its costs because of the characterisation of a respondent’s conduct of proceedings as having been defended by them in the public interest.

  4. Secondly, the public interest litigation principles have been developed with a specific goal in mind, namely that access to justice is advanced by removing the impediment of an adverse costs order to the commencement of judicial review proceedings which are appropriately characterised as having been brought in the public interest. As the chief judge said in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [18] (Caroona Coal) at [36]: “It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reason of costs acting as a barrier to access to justice”. Here, the applicants submitted, there is no equivalent policy justification in relation to judicial review proceedings defended by a decision-maker, especially where the proceedings have been caused by the decision-maker’s error.

    18. (2010) 173 LGERA 280; [2010] NSWLEC 59 (Preston CJ of LEC).

  5. Thirdly, and relatedly, numerous of the factors identified in cases such as Caroona Coal and Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [19] are not applicable in the case of an unsuccessful respondent that is seeking to invoke the public interest litigation exception to the usual costs order.

    19. (2004) 126 LGERA 365; [2004] NSWLEC 434 (Lloyd J).

  6. Fourthly, that the respondents had nothing to gain from the litigation and that the proceedings might be thought to have raised a novel point of construction with potentially wider consequences do not make this case special. The same could be said about a vast number of judicial review cases. A decision-maker who actively defends judicial review proceedings does so at the risk of an adverse costs order in the event it loses. In any event, the decision is unlikely to have any wider consequences or to provide any important clarification of the law, given that the effect of the 2025 EPA Amendment Bill (now the 2025 EPA Amendment Act) is to make the change to the law retrospective to 1 March 2018.

  7. Fifthly, as noted above, there is a vital public interest in enforcing the planning laws of NSW that overrides whatever public interest considerations are invoked by the respondents. The fact that the “proceedings went squarely to enforcing public law obligations”, as submitted by the respondents, strongly supports rather than detracts from the making of a costs order in the applicants’ favour.

  8. Sixthly, the respondents’ conduct of the proceedings was inconsistent with reliance upon the public interest litigation exception. The applicants tendered a letter from the respondents’ solicitors dated 7 February 2024 marked “Without prejudice – save as to costs” in which the respondents contended, inter alia, that the proceedings were “doomed to fail”, and offered to settle the proceedings on the basis that each party bear its own costs. Importantly, it was submitted, the letter proceeded to threaten the applicants with an order for indemnity costs if the summons were dismissed. The applicants submitted that it was utterly inconsistent with that position (that is, indemnity costs should the applicants fail) that the respondents are now seeking special dispensation from the usual costs order despite their complete lack of success in the proceedings.

  9. Accordingly, not only is there not “something more” within the meaning of the second step in Caroona Coal [20] , but the respondents fail at the threshold in that they cannot sustain the proposition that the proceedings should properly be categorised as public interest litigation. The Court should make the usual order as to costs.

    20. At [13], [17] and [47]-[48] (Preston CJ of LEC). See also Rundle v Tweed Shire Council [No 2] (1989) 69 LGRA 21 at 26 (Bignold J) and Oshlack v Richmond River Council (1994) 82 LGERA 236 at 241 and 244 (Stein J), noted in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [20], [49] (Gaudron and Gummow JJ).

Council’s submissions in relation to costs

  1. At [116] of the first judgment, the Court said as follows in relation to costs:

The parties made no submissions in relation to costs. The general rule is that costs follow the event to compensate the successful party in favour of whom the orders disposing of the proceedings are made.

  1. The respondents seek a different costs order, namely, that each party pay its own costs. This order is sought on the basis that the proceedings were defended in the public interest. The respondents referred to r 4.2 of the Land and Environment Court Rules 2007 (in Part 4 of the Court’s rules which applies to proceedings in Class 4 of the Court’s jurisdiction) which relevantly provides that (emphasis added):

(1) 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. The respondents also referred to s 98(1)(a) of the CPA which provides that costs are in the discretion of the Court. In the present circumstances, although it is the respondents who have been unsuccessful and cannot directly avail themselves of r 4.2 of the Land and Environment Court Rules, the fact that the respondents defended the proceedings in the public interest can be relevant to the general exercise of discretion under s 98 of the CPA.

  2. The question as to whether an unsuccessful defendant can properly raise public interest litigation as a reason against the application of the usual costs rule was addressed in Hume Coal Pty Limited v Alexander (No 4). [21] There Sheahan J did not make an alternative order, but said at [24]:

It is unusual, at least in this court, for the public interest character of proceedings to be argued by an unsuccessful defendant, rather than by an unsuccessful plaintiff or applicant, but it has happened elsewhere. No submission was put to me that the argument should not be entertained, and I can see no reason to restrict it. See, eg, Noone v Mericka (No 2) [2012] VSC 2. When the authorities speak of proceedings “brought” in the public interest, they, therefore, should be read as applying to proceedings “brought or defended”.

21. [2013] NSWLEC 106.

  1. In Caroona Coal, Preston CJ of LEC set out a three-step approach in determining whether to depart from the usual costs rule in unsuccessful public interest litigation.

  2. The first step identified in Caroona Coal concerns whether the litigation can be characterised as having been brought, or as here, defended, in the public interest. The principles for considering whether litigation had a public interest character are well established. [22] Here, the respondents submitted, the proceedings raised an important question which served a public interest. The answer to that question has significant consequences to the community at large for the reasons identified by the respondents and recorded at [98] of the first judgment. The implications of the outcome of the proceedings on a matter of public significance weighs strongly in favour of a finding that the litigation affected the public interest, even if the proceedings cannot be said to have been brought in the public interest. Whilst the applicants’ decision to bring the proceedings was undeniably a private interest, the Council’s decision to defend the proceedings was not. Council had no monetary interest in the proceedings, deriving no benefit from imposing affordable rental housing contributions. So much can be gleaned from the written direction of the Minister for Planning under s 94G(3)(b) of the EPA Act dated 2 October 2009, referred to at [38] of the primary judgment , which makes plain that any contributions were to be paid “to the Chief Executive, Housing NSW, Department of Human Services”. However, the respondents were seeking to maintain a broader interest in protecting affordable housing contributions on behalf of a wide sector of the public. In light of the potential far reaching consequences of the proceedings on the public interest, and in the absence of any other proper contradictor, Council resolved to defend the proceedings. Notably, the principle in R v Australian Broadcasting Tribunal; Ex Parte Hardiman [23] is not invoked given there was no other proper contradictor. Further, the proceedings went squarely to enforcing public law obligations in that the litigation sought declarations of invalidity of certain conditions of consent on the basis that they were beyond power. Although the motivation of the applicants was private, the issue here is the motivation of the respondents in providing a contradictor and seeking to uphold the public interest in maintaining affordable housing contributions in behalf of the State.

    22. See Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434 (Lloyd J); South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales (No 2) [2024] NSWLEC 36 at [36]-[46] (Pritchard J).

    23. (1980) 144 CLR 13; [1980] HCA 13 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

  3. The second step identified in Caroona Coal in determining whether to depart from the usual costs rule involves demonstrating that “something more” than the mere characterisation of the litigation as being in the public interest. The nature, extent and other features of the public interest involved in the litigation are relevant in ascertaining whether a departure from the usual costs rule is warranted. [24] A summary of the categories of “something more” can be usefully found in Caroona Coal at [60]. Here, categories (a), (b), (d) and (e) are relevant: First, the litigation did involve a “rather novel” issue of statutory construction of general importance to the power of consent authorities to impose conditions requiring contributions for affordable housing. Secondly, the litigation has also contributed to the development or administration of the law. A bill is before Parliament at present to correct the defect in the legislation at the heart of these proceedings. The effect of that bill (now the 2025 EPA Amendment Act) is to expressly authorise contributions for affordable housing under SEPP (Housing) 2021, as well as under a Local Environmental Plan (LEP). Thirdly, there are “countless” LEPs, like the Waverley LEP, capable of being affected by this litigation. For example, Newcastle Local Environmental Plan 2012 and Sutherland Shire Local Environmental Plan 2015 do not contain affordable rental housing contribution provisions even though these Council areas are metropolitan areas where SEPP (Housing) is likely to be availed of for housing developments. It follows that the subject litigation has “a significant public interest reach”. Fourthly, as already indicated, there was no financial gain for the respondents in defending the litigation.

    24. Caroona Coal at [15]-[17] (Preston CJ of LEC).

  4. The third step identified in Caroona Coal involves consideration of countervailing factors that speak against departure from the usual costs rule. [25] Here, there are no countervailing factors that would weigh against the special costs order sought by the respondents.

    25. Caroona Coal at [18] (Preston CJ of LEC).

  5. In response to the applicants’ submissions that costs are compensatory, the respondents submitted that while costs are compensatory, it was not “self-evident or manifestly obvious” that the applicants’ position was legally correct and neither could it be said that the respondents were entirely at fault. Firstly, it was to be recalled that the transitional provision, cl 15A of the 2017 regulation, was still in force and, on its face, authorised the imposition of the affordable housing contribution condition. This is not a case where it could be said that the applicants’ position was self-evidently correct. Secondly, it was not fair to say that the respondents were solely responsible for the error of imposing the affordable housing contribution condition. The error, if anywhere lay largely with the legislature. The fact that the error is to be corrected by a bill before Parliament is recognition of the legislative defect “for which the respondents are not responsible”. Cases, such as those cited by the applicants above at [38], relate to circumstances where the unsuccessful respondent was the clear cause of the error. That is not the case here.

  6. Here, while the Waverley Local Planning Panel imposed the affordable housing contribution condition, it did so based on a “rational application of a statutory provision which was in force and which, on its face, authorised the imposition of the condition”. It could not have been expected to apply the statute in any way other than in accordance with its natural meaning: “By repealing Part 5B of the EPA Act, yet at the same time, transferring cl 15A of the savings and transitional provisions, it was the legislature that caused the error.”

  7. Further, the respondents’ submissions in relation to costs should not be taken to suggest that the proceedings fall squarely into the category of public interest litigation in the sense referred to in r 4.2. Rather, the point is that the situation here has “some analogous characteristics”. Two of the most important characteristics are first, that the respondents could not be said to have defended the proceedings to protect their own financial interests, but rather to defend and protect funding for affordable housing, and second, because of the need for a contradictor.

  8. In relation to the applicants’ submission that the order sought by the respondents in relation to costs is unprecedented, the respondents submitted that there is little force in a submission that “just because something has not been done before, it should not be done in the present circumstances”. The novelty of an argument does not necessarily mean it is wrong. In any event, in Hume Coal Pty Limited v Alexander (No 4) [26] (Hume Coal v Alexander), the Court accepted that an unsuccessful respondent could raise public interest litigation as a reason against the usual rule that costs follow the event. The fact that argument was not successful on the facts of that case does not mean the argument cannot be made.

    26. [2013] NSWLEC 106 at [46] (Sheahan J).

  9. In relation to the tender by the applicants of the letter from the respondents’ solicitors dated 7 February 2024 marked “Without prejudice – save as to costs”, this was submitted to be “entirely irrelevant” to costs considerations. The respondents submitted that offers of that kind are usually tendered to support an order made for a successful party. Orders made for unsuccessful parties become irrelevant to the exercise of the costs discretion because the event forecast in the letter has not come to pass. The letter was submitted to be not inconsistent with the respondents’ interest in seeking to defend the State’s affordable housing contributions.

  10. Further, the respondents submitted that the need for a proper contradictor is particularly important in litigation in which declaratory relief is sought. In Develtor Property Group Pty Ltd v Newcastle City Council,[27] Bignold J at [50] referred to “the long established practice of Courts of Equity not to make declarations by consent, or without there being any proper contradictor…”. In Australian Securities and Investments Commission v Rich & Ors [28] (ASIC v Rich), White J said at [10] (emphasis added):

As a general principle a court does not make declarations on matters relating to public rights, or rights analogous thereto, by consent or on admissions, but only if it is satisfied by evidence: Williams v Powell [1894] WN (Eng) 141; Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at 225–7; Termijtelen v Van Arkel [1974] 1 NSWLR 525; Wallersteiner v Moir [1974] 3 All ER 217; Metzger v Department of Health and Social Security [1977] 3 All ER 444 at 451 at 451; BMI Ltd v Federated Clerks Union of Australia (NSW) Branch (1983) 51 ALR 401; P W Young, Declaratory Orders, 2nd ed, Butterworths, Sydney, 1984, para 601.

27. [2001] NSWLEC 47.

28. (2004) 50 ACSR 500; [2004] NSWSC 836.

  1. Even if Council had entered a submitting appearance, as suggested by the respondents, given the relief that was sought, the Court would need to have been satisfied, on evidence and after a hearing, that the declaratory relief should be made. It would have remained necessary for the applicants to incur the costs of bringing the proceedings, filing evidence, preparing submissions and conducting a hearing to persuade the Court that the relief should be granted. Given Council’s co-operation in agreeing facts and not contesting evidence, the respondents did little more to add to costs that the applicants would have needed to incur in any event.

Consideration

  1. For the following reasons, I will make an order pursuant to r 4.21 of the UCPR that the respondents pay the applicants’ costs of proceedings 2023/323047 insofar as they relate to DA-80/2023 granted on 27 September 2023:

  1. The starting point is that costs following the event in Class 4 judicial review proceedings by virtue of r 42.1 of the UCPR. That starting point or general rule founds a “reasonable expectation” on the part of a successful party of being awarded costs against the unsuccessful party. [29]

    29. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J), [137] (Kirby J); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

  2. Here the error the subject of the proceedings was caused by a party (Lou v IAG Ltd at [44] and Cutcliffe at [50]), relevantly, the respondents.

  3. There is insufficient basis to depart from the usual order as to costs in the present case where it is respondents that invoke the public interest litigation exception. Like the applicants, I have been unable to locate a single case in which a successful applicant has been deprived of an order for its costs on the basis of the characterisation of a respondent’s conduct as having defended the proceedings in the public interest. It may be, as submitted by the respondents, that in Hume Coal v Alexander Sheahan J at [46] adverted to the possibility, however, the argument was unsuccessful in that case.

  1. In relation to the three steps relied upon by the respondents as identified by the chief judge in Caroona Coal:

  1. as to the first step, these proceedings cannot be characterised as having been brought by the respondents in the public interest. The respondents chose to actively contest proceedings brought by the applicants, including by sending their solicitors’ letter dated 7 February 2024 marked “without prejudice as to costs”, and seeking an order for indemnity costs if the proceedings failed. There was nothing exceptional here in the respondents seeking to defend a decision made by Waverley Local Planning Panel in the exercise of statutory power;

  2. as to the second step, and the question of “something more”, I do not consider the factors identified by the respondents to be sufficient to displace the usual order as to costs; and

  3. as to the third step, and the question of countervailing factors, I consider it tolerably plain that there is no precedent for the Court depriving a successful applicant of its costs in judicial review proceedings defended by a respondent. That in itself, in my view, is a sufficient countervailing factor speaking against a departure from the usual costs rule.

  1. The respondents’ submission in response to the applicants’ submission, that in truth their point is that the situation here has “some analogous characteristics” to public interest litigation in the sense referred to in r 4.2 of the UCPR, does not take the matter any further.

  2. Nor does the respondents’ submission in relation to the “need for a proper contradictor” assist in advancing their argument that the proceedings were defended in the public interest. Without the respondents’ active participation in the proceedings, the Court would have been tasked to be satisfied on the basis of the applicants’ evidence and submissions that it was appropriate to make the declaration sought by them. That would have been consistent with the approach articulated by White J in ASIC v Rich at [10].

Orders

  1. For the foregoing reasons, the Court makes the following orders:

  1. Pursuant to r 4.21 of the Uniform Civil Procedure Rules 2005, the respondents to pay the applicants’ costs of proceedings 2023/323047 insofar as they relate to DA-80/2023 granted 27 September 2023.

  2. Insofar as proceedings 2023/323047 relate to DA-223/2021 granted 27 October 2021, the time to commence the proceedings pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 is not extended to 12 October 2023.

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Endnotes

Decision last updated: 27 June 2025

Cases Citing This Decision

0

Cases Cited

27

Statutory Material Cited

7

Australian Securities and Investments Commission v Rich [2004] NSWSC 836
Australian Securities and Investments Commission v Rich [2004] NSWSC 836
Bankstown City Council v Ramahi [2015] NSWLEC 74