Hooper v Port Stephens Council (No 3)

[2010] NSWLEC 178

Reported Decision: 176 LGERA 97

Land and Environment Court

of New South Wales

CITATION:	Hooper v Port Stephens Council and Anor (No 3) [2010] NSWLEC 178
PARTIES:	APPLICANT Stephen James Hooper FIRST RESPONDENT Port Stephens Council SECOND RESPONDENT Trevlyn Peter Hallett
FILE NUMBER(S):	40010 of 2010
CORAM:	Pain J
KEY ISSUES:	COSTS :- whether both successful respondents in class 4 proceedings should be awarded costs - whether proceedings brought in the public interest - whether indemnity costs ought be awarded
LEGISLATION CITED:	Civil Procedure Act 2005 s 98 Land and Environment Court Rules 2007 r 4.2, r 4.3 Port Stephens Development Control Plan 2007 Port Stephens Local Environmental Plan 2000 State Environmental Planning Policy No 1 Uniform Civil Procedure Rules 2005 r 42.1
CASES CITED:	Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365 Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 Forsyth & Anor v Wilesmith & Ors (No 2) [2008] NSWLEC 260 Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 Hooper v Port Stephens Council [2009] NSWLEC 234 Hooper v Port Stephens Council & Hallett [2010] NSWLEC 41 Hooper v Port Stephens Council and Anor [2010] NSWLEC 107 Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 North Cronulla Precinct Committee Inc v Sutherland Shire Council [1998] NSWLEC 171 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Warringah Council v Sedevcic [1998] NSWLEC 171; (1987) 10 NSWLR 335 Westfield Management Limited & Ors v Direct Factory Outlets Homebush Pty Ltd (No 4) [2005] NSWLEC 168
DATES OF HEARING:	15 September 2010
DATE OF JUDGMENT:	24 September 2010
LEGAL REPRESENTATIVES:	APPLICANT In person FIRST RESPONDENT Mr M Fraser SOLICITORS Harris Wheeler SECOND RESPONDENT Mr P Larkin SOLICITORS Equilaw Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

24 September 2010

40010 of 2010 Hooper v Port Stephens Council and Anor (No 3)

JUDGMENT

1 Her Honour: I dismissed the Applicant Mr Hooper’s judicial review proceedings in Hooper v Port Stephens Council and Anor (No 2) [2010] NSWLEC 112 (Hooper No 2). Costs remain for determination. Both Respondents seek their costs including on an indemnity basis from certain dates. The First Respondent, Port Stephens Council (the Council), granted development consent for a house to the Second Respondent on land in Port Stephens which is the subject of the Mr Hooper’s judicial review challenge. Both Respondents played an active role in the substantive hearing. Mr Hooper opposes any costs order on the basis that these are proceedings taken in the public interest. He has represented himself throughout.

2 On the first day of the two day hearing in Hooper v Port Stephens Council and Anor [2010] NSWLEC 107 (Hooper No 1) I held that most of the ten grounds identified in Mr Hooper’s Amended Points of Claim (APOC) could not be raised in judicial review proceedings. The grounds struck out did not raise grounds relevant to judicial review proceedings such as merit issues. Grounds alleging improper conduct and fraudulent misrepresentation were also struck out as the facts pleaded as underpinning these allegations provided no relevant evidence to establish such claims. Three issues were allowed to proceed in whole or part which were the subject of Hooper No 2. These issues concerned whether the building height limit, the number of storeys, and side and front setback provisions in the Port Stephens Local Environmental Plan 2000 (the LEP) had been met, the application of State Environmental Planning Policy No 1 (SEPP 1) and whether there were any failures in the Council officer’s assessment report of the Second Respondent’s development application (the DA).

3 It is relevant to note that in separate proceedings (40991 of 2009), Pepper J delivered an ex tempore judgment on 18 December 2009, Hooper v Port Stephens Council [2009] NSWLEC 234, following an ex parte application brought by Mr Hooper seeking injunctive relief to stay a construction certificate issued by the Council in relation to the house the subject of the Second Respondent’s development consent. Her Honour dismissed Mr Hooper’s application noting at [30] and [31]:

…. with respect to the public interest, I consider that there is a public interest in Mr Hooper bringing this application. His concern for the environment and for the amenity of his residential area is genuine and legitimate. However, the concept of public interest is multi-faceted. Whilst there is a public interest in the proper enforcement of public welfare statutes such as planning and environmental laws, there is also a public interest in the reliable and predictable administration of these laws from the perspective of the body tasked to discharge its regulatory functions in accordance with them. Furthermore, there is a public interest in those who have been granted development consents, such as Mr Hallett, being able to take the benefit of them.

On the whole, while I find that there is a public interest in protecting the environment, I nevertheless find that the public interest in this application favours Mr Hallett, as the recipient of the consent, and the council in the orderly administration of its processes.

4 There were numerous interlocutory steps taken in these proceedings as follows:

(i) Class 4 proceedings commenced on 12 January 2010 with the filing of a summons. The first return date was 12 February 2010 when directions were made by Biscoe J regarding timetabling. An oral application made by Mr Hooper seeking a direction that the Council furnish reasons for its decision to approve the Second Respondent’s DA was refused. Directions were made and the class 4 hearing was set down for 27 – 28 May 2010.
(ii) Mr Hooper filed Points of Claim (POC) dated 23 February 2010.
(iii) The Second Respondent filed a Notice of Motion dated 8 March 2010 seeking orders that the summons of 12 January 2010 and the POC be struck out, and seeking costs.
(iv) On 12 March 2010 Biscoe J set aside the orders of 12 February 2010 by consent. Mr Hooper’s oral application for an order pursuant to r 4.3 of the Land and Environment Court Rules 2007 (the Court rules) compelling the Council to provide reasons for its decision to Mr Hooper was referred to the duty judge for determination.
(v) Sheahan J heard Mr Hooper’s oral application seeking a statement of reasons from the Council and the Second Respondent’s Notice of Motion to strike out Mr Hooper’s POC and summons. The matter was stood over to 19 March 2010.
(vi) In an ex tempore judgment Hooper v Port Stephens Council & Hallett [2010] NSWLEC 41 on 19 March 2010 Sheahan J made orders striking out Mr Hooper’s POC and in order 4 required Mr Hooper to file and serve an amended summons and POC by 14 May 2010. Order 4 continued “ Such Points of Claim are to particularise in specific detail any allegation made of improper conduct such as falsification of documents on the part of the Council and its officers ”. An order was made pursuant to r 4.3(b) of the Court Rules that the Council file and serve a written statement of reasons by 23 April 2010. Detailed directions for future timetabling were made, the hearing dates were vacated and the parties were directed to the Registrar to seek new hearing dates. All questions of costs were reserved. New hearing dates of 24 – 25 June 2010 were allocated.
(vii) Mr Hooper filed an amended summons and amended POC on 13 May 2010.
(viii) On 24 May 2010 Mr Hooper filed a Notice of Motion dated 23 June 2010 seeking further particulars and an amended statement of reasons from the Council and an order that the Council pay Mr Hooper’s costs.
(ix) On hearing Mr Hooper’s Notice of Motion dated 23 June 2010, Craig J delivered an ex tempore judgment amending the timetable directions of 19 March 2010 and otherwise dismissing Mr Hooper’s Notice of Motion. Costs were reserved.
(x) Mr Hooper notified the Court registry on 11 June 2010 that he considered there had been a slippage in the timetable and the matter was listed before the list judge for directions on 18 June 2010. Directions were made by Pepper J allowing minor changes in timetabling. Her Honour declined leave to issue subpoenas against three councillors serving on the Council. Costs were reserved and the matter was stood over for hearing on the allocated dates.
(xi) Mr Hooper’s amended Class 4 summons was heard on 24 and 25 June 2010. At the outset of the hearing Mr Hooper sought leave to file in Court a Notice of Motion dated 24 June 2010 seeking an adjournment. Leave was granted. The Notice of Motion was dismissed. Directions were made that the hearing be adjourned early and recommence on the second day to allow Mr Hooper time to prepare. I delivered an ex tempore judgment on 25 June 2010, Hooper No 1 , striking out most of Mr Hooper’s amended POC. The hearing continued to address the three remaining matters in the amended POC.
(xii) My final determination dismissing Mr Hooper’s amended summons in Hooper No 2 was handed down on 21 July 2010. Costs were reserved and stood over for hearing before me on 11 August 2010.
(xiii) Mr Hooper did not appear on 11 August 2010 and I stood the matter over to 18 August 2010 with the Second Respondent’s undertaking to advise Mr Hooper by personal service of the re-listed date.
(xiv) Subsequent re-listed hearing dates of 18 August 2010 and 24 August 2010 were vacated following correspondence from Mr Hooper indicating that he was medically unfit to appear.
(xv) A costs hearing on 8 September 2010 was adjourned due to an equipment failure in the Court. The costs hearing proceeded as re-listed on 15 September 2010.

5 The Council tendered correspondence sent to Mr Hooper by the Council’s solicitor early in the litigation (7 May 2010) identifying their concerns regarding unnecessary cost escalation in the proceedings, and indicating that should Mr Hooper seek leave to discontinue the proceedings the Council would consider its position as to costs to date. The Council’s solicitor advised Mr Hooper that the height of the approved building complied with cl 19 of the LEP. Prior to this costs hearing another letter was sent to Mr Hooper (dated 4 August 2010) inviting Mr Hooper to consider a costs order by consent so as to avoid the additional costs of a further hearing. The letter also identifies that the Council would be relying on this offer in the event that a costs hearing eventuated. Each letter stated that the Council would consider seeking an order for indemnity costs in the alternative. The letters from the Council were not marked without prejudice as to costs.

6 The Second Respondent also tendered a letter sent to Mr Hooper by the Second Respondent’s solicitor early in the litigation (5 February 2010) indicating that Mr Hooper lacked reasonable prospects of success. The offer made without prejudice as to costs was that if Mr Hooper discontinued proceedings by 10 February 2010 the Second Respondent would not seek his costs in the proceedings. The letter also stated that the Second Respondent would rely on this letter in the event that a costs hearing eventuated. The Second Respondent also sent a letter to Mr Hooper (dated 5 August 2010) repeating the invitation made by the Council for Mr Hooper to consider a costs order by consent so as to avoid additional costs of a further hearing, and similarly stating that the Second Respondent would rely on this letter should a costs hearing eventuate and that the Second Respondent would be seeking an order for indemnity costs in the alternative.

7 Mr Hooper sought to tender a bundle of documents. Not all were relevant. Those that related to these proceedings were admitted.

Council’s submissions

8 The usual rule in Class 4 proceedings is that costs follow the event, as confirmed by r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). Costs are compensatory not punitive per Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 566. There is no disentitling conduct by the Council suggesting that no award of costs is justified. The Court needs to find some positive or good reason for departing from the usual course Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365 at [54] per Bryson JA. As is usually the case in judicial review proceedings challenging the grant of development consent by a council the Council as consent authority and the Second Respondent as holder of the consent, here the owner of the land, were proper parties. The Council can usually be expected to lodge a submitting appearance where there is another party actively contesting the proceedings, as found by Biscoe J in Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 at 330-340 referring to Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 and Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWLEC 17; (2006) 143 LGERA 268. There is no broad legal principle and each case must depend on its facts per Forsyth & Anor v Wilesmith & Ors (No 2) [2008] NSWLEC 260 at [6].

9 The pleadings and conduct of the proceedings by Mr Hooper raised allegations of misconduct by the Council which it was necessary for the Council to respond to as a party. The APOC raised allegations of improper conduct, professional misconduct, bias, fraud and fraudulent misrepresentation. The allegation was made that the assessment report was prepared to deliberately mislead the Council. It was necessary for the Council to do more than file a submitting appearance. Further Mr Hooper sought to engage the Council actively in the litigation with frequent requests to the Council’s solicitor seeking particulars and in lengthy and numerous correspondence.

10 The interests of the two Respondents are not aligned by virtue of Mr Hooper’s claims. There was potential for conflict between the Respondents if Mr Hooper produced evidence which showed the assessment report was misleading and/or false. There were allegations of collusion to produce a fraudulent report.

11 The Respondents did work co-operatively to limit costs by the Second Respondent adopting the Council’s written submissions, objections to affidavits being done by the Second Respondent and adopted by the Council, objections to documents being done by the Council and adopted by the Second Respondent, and the adoption of a single chronology prepared by the Second Respondent. At all times the Respondents were conscious of the practical need to conduct the litigation as efficiently and cost effectively as possible.

12 Indemnity costs are sought from a period shortly after 7 May 2010, the date of the letter written by the Council outlining why the SEPP 1 objection issue raised by Mr Hooper was fundamentally flawed.

13 The ligation is not public interest considering the factors identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 at [38] to [46], also Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 at [16].

Second Respondent’s submissions

14 The usual rule is that costs follow the event. There is no proper basis upon which the Court can be satisfied that the action was taken in the public interest. The bulk of matters were non-justiciable and were disposed of on a summary basis, the remaining issues raised no point of principle or matter of general importance and raised matters of merits review. The SEPP 1 argument failed and was based on a miscalculation of the height of the proposed building the subject of the Second Respondent’s DA. No broad community interest was at stake. This was essentially a dispute between neighbours. Mr Hooper’s subjective view that he thought the matter was in the interests of the environment and the neighbourhood is not commensurate with the public interest in the enforcement of the environmental planning laws. Even if brought in the public interest Mr Hooper has failed on all grounds and no other factors suggest that costs ought not be awarded.

15 As the owner of the land over which development consent has been granted the Second Respondent is a necessary party. The Respondents presented their cases in a manner that minimised the potential for overlap and duplication. Both Respondents should be awarded their costs incurred as a consequence of Mr Hooper commencing the Class 4 proceedings.

16 Indemnity costs are sought from shortly after a letter dated 5 February 2010 was sent to Mr Hooper offering to discontinue the claim and to seek no order from Mr Hooper as to the costs of the proceedings incurred as at that date. It was unreasonable for that offer to be rejected, hence the claim for indemnity costs. Alternatively, the Second Respondent submits that it is entitled to indemnity costs from 1 June 2010, being three weeks after Mr Hooper was put on notice by the Council of the specific details of fundamental flaws in his case in relation to the SEPP 1 objections.

17 A Calderbank offer letter was also sent by the Second Respondent’s solicitor in relation to the costs motion, meaning a letter marked without prejudice with an offer in relation to costs.

Applicant’s submissions

18 Mr Hooper filed extensive written submissions identified for ease of reference as H1 and H2. I did not admit a written statement dated 7 September 2010 concerning matters of personal and professional history on which he sought to rely because it did not raise any matters relevant to the substantive proceedings or these costs applications.

19 In H1 Mr Hooper submitted that a councillor considered that the Council should consider the Second Respondent’s DA as a public interest matter. On 19 November 2009 Mr Hooper met with a Council officer assessing the DA because he considered approval of the DA would undermine the Council’s planning instruments. On 15 December 2009 Mr Hooper addressed the Council and made a power point presentation to address the councillors to alert them to the dangers to all ratepayers and residents. The matter is a public interest matter because it fails to satisfy planning considerations and is inconsistent with public expectations of orderly residential development in relation to scale and design in the residential 2(a) zoned area.

20 The transcript of 18 December 2009 shows that Mr Hooper stated that he brought matters on behalf of the community, not for his personal gain or satisfaction. The decision of the Council was against the public interest and the proposed development is contrary to the public interest as the development fails to satisfy the planning considerations and the character of the area.

21 Pepper J stated in her ex tempore judgment 18 December 2009 that there was public interest in the bringing of this application in her consideration of an application for an injunction by Mr Hooper.

22 In H1 he further states that he lodged an extensive well researched objection to the DA and considers he had no choice but to commence these proceedings because he considered the Council was not complying with its charter requiring it to properly manage the environment.

23 No costs order ought be made against him as he has brought these proceedings in the public interest. He has a long standing and demonstrated interest and concern in environmental matters. The application of the usual costs rule will impact on individuals and organisations ability to take advantage of broad standing rules according to a conference address by Toohey J “Environmental Law – Its Place in the System”, First NELA/LAWASIA International Conference on Environmental Law, June 1989. That the proceedings were public interest was recognised by Sheahan J on 19 March 2010 where he recognised Mr Hooper was highly experienced in building and development matters.

24 Reliance is placed on Oshlack per Kirby J where the exception of public interest litigation in relation to the usual costs rule was recognised. There is public interest in ensuring the orderly development of environmental and planning laws, recognised in Warringah Council v Sedevcic [1998] NSWLEC 171; (1987) 10 NSWLR 335. In North Cronulla Precinct Committee Inc v Sutherland Shire Council [1998] NSWLEC 171 it was recognised that special circumstances may be required to displace the ordinary costs principles.

25 In H2 Mr Hooper submitted that a decision on costs should wait as these proceedings were interlocutory in nature given that an appeal has now been filed in the Court of Appeal. Extensive submissions in reply to the Council’s submissions on costs were also made to the effect that these proceedings were public interest per North Cronulla Precinct Committee, and also Oshlack where Stein J found that the applicant’s case was arguable, raised serious and significant issues and the applicant had nothing to gain from the litigation other than the worthy motive of upholding environmental law on an issue that had implications for councils and developers. Mr Hooper has a complete understanding of the law in question, the case concerning the two key issues of building height and number of storeys was arguable, the purpose of the litigation was to protect the local built environment, and he had nothing to gain personally from the litigation.

26 There was no need for both Respondents to participate in the proceedings. The Council could have submitted to the Court’s decision or defend its decision. The Second Respondent had no relevant right to become an active respondent because he was a beneficiary of the DA consent. He could have filed a submitting appearance.

27 Mr Hooper pursued two mandatory matters, concerning height of the building and the number of storeys. These were articulated from the outset of the proceedings and before Pepper J on 18 December 2009. The only cause of action to be challenged as against the Council was in the summons filed 12 January 2010 concerning the two core issues of height and the number of storeys. Mr Hooper did not intend to pursue the matters the Court struck out in Hooper No 1. These were drafted in order to comply with order 4 made on 19 March 2010 by Sheahan J. Counsel for the Respondents should have known as regular practitioners in the Court that the parts of the POC struck out could not have been heard in any event.

28 As to the Council’s submissions that it had to play an active role in the proceedings the reference to allegations of misconduct as raised in the pleadings was only included by Mr Hooper in direct response to order 4 dated 19 March 2010 in relation to the filing of amended POC. Mr Hooper used appropriate words such as bias, flawed, unreliable documents, that could be proven as correct but would never have been proven in these proceedings.

29 Mr Hooper had to write to the Council for details on more than one occasion because the Council did not provide adequate information. Mr Hooper denies the Council’s characterisation of his allegations of misconduct (which appear in par 12 to 20 of the Council’s written submissions).

30 Mr Hooper also denies the Council’s assertions that the Respondents’ interests are not aligned (see par 21 to 26 of the Council’s written submissions).

31 There was no reason for the beneficiary of the consent to be joined as a party in the proceedings. Mr Hooper has focussed on two core issues of height and the impact on the residential 2(a) zoning with the Council area conversely to the claims of the Respondents that the focus was on a small area only.

Finding

32 I record for completeness my advice to Mr Hooper at the costs hearing that the finalisation of these costs proceedings has no bearing on his ability to pursue an appeal in relation to Hooper No 2. The usual course is that all matters outstanding before this Court such as costs are determined regardless of whether an appeal is pending. There is no reason not to proceed to determine costs in this matter as it has otherwise been determined finally in this Court.

33 Further, the orders made in Hooper No 2 are not rendered as interlocutory by virtue of the fact that Mr Hooper has filed an appeal in relation to Hooper No 2. But for costs this matter has been finally determined in this Court.

34 Under s 98 of the Civil Procedure Act 2005 costs are awarded at the discretion of the Court. Costs rules are identified in Pt 42 of the UCPR. The usual costs rule in Class 4 proceedings is that costs follow the event. That is the approach to costs articulated in r 42.1 UCPR subject to the Court exercising its broad discretion to determine whether that is the appropriate costs order. Rule 42.1 UCPR is subject to any applicable court rules. Part 4 r 4.2 of the Court Rules provides that the Court can decide not to make a costs order against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

35 In judicial review proceedings challenging a grant of development consent by a council, the council and the beneficiary of the consent, usually the landowner of the land for which consent has been granted, are proper parties to the litigation. That does not mean that both need play an active role and that both should receive their costs, a matter I will consider shortly.

36 The Respondents have been successful in opposing Mr Hooper’s Class 4 summons and now both seek their costs. There is no disentitling conduct in relation to the Respondents’ conduct of this somewhat protracted litigation, as detailed in the numerous interlocutory steps identified in the chronology to the proceedings. Interlocutory orders were made in relation to the Second Respondent’s Notice of Motion dated 8 March 2010 to strike out the APOC (successful), Mr Hooper’s application for the Council to provide a statement of reasons (successful) and Mr Hooper’s Notice of Motion dated 23 June 2010 seeking to vary the timetable (unsuccessful). Numerous mentions for the making of directions have also been necessary.

Should both Respondents get costs order in their favour?

37 Whether both Respondents should get their costs paid must be considered. It is preferable that only one respondent play an active role in judicial proceedings concerning the challenge to a development consent as it is generally the case that the necessary arguments can be made by one party. The obiter comments of Gummow and Gaudron JJ in Oshlack at [12] that the preferable course for a council to take is not to actively participate in proceedings where a grant of development consent is challenged has been identified in other cases in this Court such as Cutcliffe, inter alia. While obiter, the comments are authoritative and need to be considered firstly in relation to the role of a council as a consent authority and also to ensure that costs of proceedings are reduced through the filing of a submitting appearance of one party where appropriate. In this Court councils do choose to play an active role in defending their decisions in judicial review proceedings and that may be appropriate on occasion. It is not automatic however that they will be awarded their costs if they do so. It is generally preferable that one party file a submitting appearance to avoid unnecessary costs.

38 Here the Council’s counsel submitted that it had to continue to play an active role in the proceedings because of the nature of the allegations of fraudulent misrepresentation and misconduct raised in the APOC by Mr Hooper. These were not removed from contention until the second day of hearing in Hooper No 1 when the Court struck out those parts of the APOC which had raised those matters. Further the conduct of Mr Hooper was focussed on the Council and he actively engaged with it in the course of the proceedings through extensive correspondence. That is confirmed by Mr Hooper’s submissions which stress that his focus was the Council’s decision-making.

39 I agree with these submissions of the Council. A large number of grounds raised in the APOC were struck out including those which raised potentially serious issues concerning fraudulent misrepresentation and misleading conduct by the Council or its officers. Taking at face value Mr Hooper’s argument that he included those grounds in the APOC only because order 4 made by Sheahan J required him to do so, he has made a most unfortunate error in including such matters in the APOC if he did not intend to pursue them. It is the responsibility of any litigant before this Court to include in pleadings only matters which they intend to pursue. There was no compulsion in order 4 made by Sheahan J that these matters be included. Such an order is simply intended to ensure that if such matters are to be pursued that they must be articulated. The Court would not compel parties to articulate grounds they do not wish to press. The result of these grounds being included in the APOC is that there were potentially serious matters raised about the Council’s behaviour which it considered that it had to respond to. There can be no criticism of the Council that it ought to have known those matters would not proceed at the final hearing, contrary to Mr Hooper’s submission to that effect. Until the orders striking out those parts of the APOC were made in Hooper No 1 there was no reason for the Council to consider these matters would be pressed.

40 The Second Respondent took the most active role in presenting submissions in relation to the three remaining parts of the APOC which remained after Hooper No 1. The Council largely adopted these submissions, a sensible course.

41 Mr Hooper is elderly, presently has medical problems and is a pensioner. Means to pay are not a relevant matter to consider when determining whether a costs order ought be made at all. They can be taken into account in relation to the period after which an order can be enforced. Mr Hooper has represented himself throughout and did not appear to have the benefit of legal advice in the lead up to or at the hearing. There have been a number of interlocutory proceedings, detailed above at par 4, which would have caused both Respondents to incur further costs. The circumstances are unfortunate. There is no disentitling conduct suggesting the Respondents ought not be awarded their costs. It is appropriate that both Respondents be awarded all or some of their costs in these circumstances.

Is this public interest litigation?

42 Mr Hooper argues that he should not be ordered to pay any costs as he has brought these proceedings in the public interest, being the interests of the wider community. The principles applied to whether costs ought be awarded in unsuccessful public interest cases have been considered and developed in numerous cases, with Oshlack considered an important starting point. The cases have been comprehensively analysed by Preston J in Caroona. His Honour identified a three step process which he considered enabled a principled exercise of the Court’s cost discretion. The first step is to determine whether the proceedings are public interest litigation, if so the second is whether the nature, extent and features of the litigation would ground a departure from the usual costs rules. Consideration of any countervailing factors including relating to the conduct of the applicant which suggests there should be departure from the usual costs rule is necessary in the third step. Caroona provides a useful framework for the assessment of costs in these circumstances, and I applied this approach in Gray.

43 In relation to the first step of whether this is public interest litigation, Caroona identifies at [38]-[46] considerations which Lloyd J identified in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [15]. These included whether the public interest was served by the litigation, whether interest was confined to a relatively small number of people, whether the applicant seeks to enforce public law obligations and has the prime motivation of upholding the public interest and the rule of law. Also relevant is whether an applicant stands to gain financially from the litigation.

44 As stated in Caroona at [49], it is not sufficient to lay claim that proceedings are in the public interest, this must be established. There is no reason not to accept that Mr Hooper has engaged in these proceedings without expectation of any personal or financial gain. He appears to hold a genuine concern about the impact of the Council’s decision to approve the Second Respondent’s DA for a large house in a neighbourhood in Port Stephens. His subjective concerns about the impact of the development does not render this litigation public interest in nature. The issues considered in Hooper No 2 were related to the application of the relevant LEP and the Port Stephens Development Control Plan 2007 (the DCP) in the particular circumstances of this Second Respondent’s DA. There appears to be no wider application of the decision the Council made in relation to the operation of its planning instruments. While he claimed in his submissions to be representing the wider community (by way of his membership in the Tomaree Ratepayers and Residents Association) there is no evidence of that. The summons is filed by him as an individual.

45 It is difficult for litigants in person who are not legally represented to differentiate between submissions and evidence. Mr Hooper has argued forcibly in his submissions that he is acting in the public interest and I accept that he considers that he has demonstrated this matter. Unfortunately there is no evidence to support these submissions.

46 Mr Hooper has placed reliance on part of the decision of Pepper J when her Honour refused his application for an interlocutory injunction in separate proceedings and stated that she accepted that there was a public interest in Mr Hooper bringing that application. The whole of the finding of Pepper J in relation to public interest considerations is set out at par 3 above. That statement was made in the context of weighing up where the balance of convenience lies in relation to the grant of an interlocutory injunction. It articulates the fact that the public interest is a broad concept. Her reasoning does not provide a basis for finding that Mr Hooper has undertaken public interest litigation. Weighing up these matters I would not characterise this as public interest litigation.

47 If I had, the nature of the proceedings needs to be considered as part of the second step identified in Caroona. The matters which were ultimately argued before me concerned the height of the proposed building, the number of storeys and whether the side and front setbacks all complied with the relevant LEP and/or DCP. At issue in relation to building height was a factual question of whether cl 19 of the LEP which contained a height limit of 9 m had been complied with. The Council considered that it had and I held there was no legal error in reaching that finding. There was no failure in the application of cl 19 of the LEP. The same finding was made in relation to the other grounds of appeal concerning the LEP. These grounds focussed on the application of the Council’s planning instruments to an individual application for development consent by the Second Respondent.

48 As considered at [16] of Gray:

To the extent that it is appropriate or necessary to consider additional factors referred to in the second step in Caroona, five considerations identified in various cases are referred to at [60] as follows:
(a) the litigation raises one or more novel issues of general importance;
(b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law;
(c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance;
(d) the litigation affects a significant section of the public; and
(e) there was no financial gain for the applicant in bringing the proceedings.

49 In this matter no novel questions of application of the relevant LEP or DCP were raised, the matters challenged were within the Council’s power and responsibility to determine and the Court did not find any ground of judicial review was upheld in relation to the Council’s decision-making. Underpinning a number of Mr Hooper’s concerns were merit issues which are not able to be raised in these Class 4 judicial review proceedings. None of the factors in (a) (b) (c) or (d) apply to the proceedings in terms of the evidence before me. I have already accepted that Mr Hooper will not gain financially from the proceedings. These matters suggest that even if I had held that this was public interest litigation the nature of the litigation would not warrant a departure from the usual approach on costs.

50 I do not need to consider if there are any countervailing considerations. There is no basis established by Mr Hooper which suggests that I should not apply the usual approach to costs in this case.

Should indemnity costs orders be made?

51 Both Respondents seek an order that part of their costs from a specified date(s) be paid on an indemnity basis. The basis for the application is that Mr Hooper unreasonably refused the offer of settlement in the letter dated 7 May 2010 from the Council’s solicitors. The Second Respondent argues similarly from an earlier date shortly after 5 February 2010 or alternatively from the same date as the later letter of 7 May 2010 from the Council.

52 Indemnity costs can be awarded under r 42.5 UCPR. Relevant principles were identified in Westfield Management Limited & Ors v Direct Factory Outlets Homebush Pty Ltd (No 4) [2005] NSWLEC 168 at [35] considering that an award of indemnity costs may be appropriate where an applicant properly advised should have known that he had no chance of success.

53 Mr Hooper argued that the offers by the Respondent lacked substance as they were not accompanied by detailed evidence to support the statements therein. That is not a requirement of an offer of settlement. Such offers provide an opportunity for the parties to consider their respective positions with a view to avoiding litigation.

54 While Mr Hooper has been unsuccessful in the litigation on all the grounds raised by him I do not consider that his behaviour is so unreasonable that an award of indemnity costs is warranted. The letters sent by the Respondents referred particularly to building height in relation to which Mr Hooper was ultimately unsuccessful. Other grounds argued by him at the hearing were potentially arguable.

55 As the Respondents have been successful in their costs applications Mr Hooper should also pay the costs of the hearing on costs on 15 September 2010. I will not award the costs of the multiple adjournments of the costs hearing due to Mr Hooper’s medical condition or costs incurred as a result of the equipment failure in court on 8 September 2010.

Orders

56 The Court makes the following orders:

1. The Applicant Mr Hooper is to pay the Council’s costs of :
(i) these proceedings but for the costs of the Applicant’s application for a statement of reasons, and
(ii) the hearing on costs on 15 September 2010.
This order is not to be enforced for a period of 12 months from the date of this order.

2. The Applicant Mr Hooper is to pay the Second Respondent’s costs of:
(i) these proceedings but for the costs of the Applicant’s application for a statement of reasons if any, and
(ii) the hearing on costs on 15 September 2010.
This order is not to be enforced for a period of 6 months from the date of this order.