McGinn v Ashfield Council

[2011] NSWLEC 105

Land and Environment Court

New South Wales

Medium Neutral Citation:	McGinn -v- Ashfield Council [2011] NSWLEC 105
Hearing dates:	23 June 2011
Decision date:	04 July 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	(1) Proceedings dismissed. (2) Respondent to pay Applicant's costs until and including 16 December 2010 with the exception of Respondent's notice of motion filed on 8 November 2010 in respect of which there is no order for costs. (3) Applicant to pay Respondent's costs from 17 December 2010.
Catchwords:	JUDICIAL REVIEW:- whether Respondent formed an opinion based on incorrect information; COSTS - whether no costs order should be made against unsuccessful applicant in proceedings brought in the public interest.
Legislation Cited:	Ashfield Development Control Plan 2007 Civil Procedure Act 2005 ss 11, 98 Land and Environment Court Rules 2007 r 4.2 Uniform Civil Procedure Rules 2005 rr 1.7, 42.1
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39, 172 LGERA 157 John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100 McGinn v Ashfield Council [2011] NSWLEC 84 Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 Sinclair v Mining Warden at Maryborough [1975] HCA 17, 132 CLR 473
Category:	Principal judgment
Parties:	Sophia McGinn (Applicant) Ashfield Council (Respondent)
Representation:	Counsel: Ms S McGinn in person (Applicant) Mr P R Clay (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	40554 of 2010

Judgment

1. I dismissed this judicial review proceeding challenging the validity of a development consent on 4 May 2011: McGinn v Ashfield Council [2011] NSWLEC 84. Costs were reserved. The matter was listed before me on 23 June to determine the respondent Council's costs application.

Re-opening and Amendment

1. Upon the costs application being called on for hearing, the applicant applied orally to re-open and to amend her points of claim to raise a new ground of challenge to the validity of the second development consent. The Council did not object and I granted the application. This judgment should be read with my earlier judgment. The new ground is as follows:

The Council erred in forming a positive opinion of consistency with the objectives of the [Ashfield Development Control Plan 2007] because it was based on incorrect information, that is, the site had two street frontages... Drawing a conclusion based on incorrect information is an error in law; therefore, the second [development consent] should be invalid.

1. This alleged incorrect information is said to have been in the following statement in a Council report of 23 November 2010: "The proposal will not result in a 'isolated place' where there would otherwise be rear gardens for the main reason that the subject site has two street frontages. Therefore, the proposed dwelling will have its own street frontage thus ensuring that each dwelling has a front address and a rear access to its own garden". The "subject site" is the whole of the site on which the existing dwelling is located and the proposed new dwelling is to be located. The "two street frontages" are Brunswick Parade and Park Lane. The proposed dwelling will have one frontage, to Park Lane. There is a conflicting and erroneous statement on the next page of the report that the new dwelling does not address the laneway but is accessible from Brunswick Road.

1. The applicant submits that a lane is not a street and therefore it was an error for the report to have referred to two "street" frontages. The applicant's particulars cite the NSW Housing Code Appendix B Glossary as stating: " Lane means a public road, with a width greater than 3 m, but less than 7 m that is used primarily for access to the rear of the premises...". It was not suggested that that Code has any particular standing under the Ashfield Development Control Plan 2007 ( DCP ).

1. Assuming (without deciding) that it is inaccurate to refer to a lane as a street, it is apparent from the whole of the material before the Council that it was not misled and knew that one of the "two street frontages" was a lane, Park Lane; and knew that it was approving a proposed dwelling which had a frontage only to a lane, Park Lane. I am not satisfied that the applicant has proved that the Council based its decision on incorrect information. I therefore do not accept the new ground. I note that there was no ground of challenge that the Council did not have power to grant consent to a dwelling which has a frontage to a lane.

1. Accordingly, I propose to dismiss the proceedings.

COSTS

1. I turn to the issue of costs. The proceedings had two phases.

First phase

1. The first phase of the proceedings was the period from their commencement to the filing on 16 December 2010 of amended points of claim challenging the second consent. The amendments were necessitated because the first consent, which the proceedings originally challenged, was surrendered and the Council resolved in November 2010 to issue the second consent.

1. In my principal judgment I held at [15]:

It is a reasonable inference that the surrender of the first consent occurred and the Council came to consider the second DA because of concern that the applicant's original challenge to the first consent would succeed. This is fortified by a Council file note of 9 September 2010. The note records that the Council told the Property owner it had engaged a solicitor in respect of the proceedings, that legal advice suggested that Council's planning report had not addressed certain sections of its development control plan in detail. The file note identified that one of the options open to the owner was to surrender the first consent.

1. It seems to me that the Council effectively surrendered in relation to the first phase of the proceedings and should pay the applicant's costs in relation to that phase. This will not affect the order made on 17 December 2010 that the Council's notice of motion filed on 8 November 2010 be dismissed with no order for costs.

Second phase

1. The second phase of the proceedings was the period from 17 December 2010 to the conclusion of the proceedings.

1. At the commencement of the first hearing there were four grounds of challenge:

(a)   bias: the applicant failed;

(b)   failure to take into account a relevant matter: the applicant withdrew this claim at the commencement of the hearing;

(c)   error in forming an opinion/no evidence: the applicant failed; and

(d)   Wednesbury unreasonableness: the applicant failed.

1. Thus, the Council was successful in the proceedings as amended in December 2010.

1. As discussed above, there was a second hearing where the applicant was granted leave to amend to raise a further ground of challenge. It too was unsuccessful.

1. Section 98 of the Civil Procedure Act 2005 affords the court a broad discretion to award costs, subject to the rules of court. Under r 42.1 of the Uniform Civil Procedure Rules 2005 ( UCPR ), which apply in proceedings such as this, costs generally follow the event. Rule 42.1 provides:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

1. The Council claims that costs should be awarded in accordance with the general rule. However, the Land and Environment Court Rules 2007 ( LECR ) prevails over r 42.1 of the UCPR to the extent of any inconsistency: Civil Procedure Act s 11 and UCPR r 1.7 and Sch 2. Rule 4.2(1) of the LECR provides:

4.2 Proceedings brought in the public interest

(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.

Principles

1. A principled three step approach has been developed in determining costs in litigation that is said to have been brought in the public interest. First, can the litigation be characterised as having been brought in the public interest? Secondly, if so, is there "something more" than the mere characterisation of the litigation as being brought in the public interest? Thirdly, are there any countervailing circumstances, including in relation to conduct of the applicant, which speak against departure from the usual costs rule?: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280 at [13] per Preston CJ.

1. Step 1 is characterisation as public interest litigation. This Court and (on appeal from this Court) the Court of Appeal have referred to the following five considerations to determine whether litigation can be properly characterised as having been brought in the public interest (see the cases collected in Caroona at [38] - [48]):

(a)   the public interest served by the litigation;

(b)   whether that interest is confined to a relatively small number of members from the applicant group or association in the immediate vicinity of the development, concerned with their own private amenity, or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area;

(c)   whether the applicant sought to enforce public law obligations;

(d)   whether the prime motivation of the litigation was to uphold the public interest and the rule of law; and,

(e)   whether the applicant has no pecuniary interest in the outcome of the proceedings.

1. These considerations are not exhaustive and it is not necessary to answer them in a particular way in order for litigation to be characterised as being in the public interest or as not being in the public interest. Nevertheless, the answers may be relevant in the second and third steps: Caroona at [46].

1. Step 2 is to determine whether there are additional circumstances. Merely because a litigant may lay claim to some notion of public interest does not entitle them to be granted an indemnity for costs or a "free kick" in litigation: Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 at [134] per Kirby J. As has been frequently said in this jurisdiction, "something more" is required. In this second step, once the litigation has been characterised as being brought in the public interest "it becomes necessary to examine more closely the nature, extent and other features of the public interest involved in the particular litigation to ascertain whether they provide justification in the circumstances of the case for departure from the usual costs rule": Caroona at [15].

1. The "something more" may be found in the moment or magnitude of the public interest itself: Caroona at [59].

1. Otherwise, at least five categories of additional circumstances have been identified as "something more" ( Caroona at [60]):

(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.

1. These considerations are not definitive, nor are they closed, but no other considerations were presented to me as relevant.

1. Step 3 is to determine whether there are any countervailing circumstances. These may include the following ( Caroona at [61]):

(a)   the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation;

(b)   where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation; or the group is a "faade" or vehicle for persons wishing to protect their own commercial interests;

(c)   the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation;

(d)   the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications;

(e)   the applicant unreasonably pursues or persists with points which have no merit or issues that were not eminently arguable; and

(f)   there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation.

Submissions

1. The applicant submits that although she was unsuccessful, the proceedings were brought in the public interest and thus engage r 4.2(1). The applicant submits that the following constitute "something more" in the proceedings:

(a)   the 'administrative error' she identified in relation to the first ground was a novel issue which could have "significant impact on the accuracy of the records and validity of decisions made by the Council for all future development applications";

(b)   resolution of the applicant's claim that the Council failed to take into account a relevant matter will apply to all alleged future non-compliance with the DCP and accordingly affects a significant section of the public; and

(c)   the ground of Wednesbury unreasonableness was dependent on the success of the other grounds, and was therefore also in the public interest.

1. The Council concedes that there is an element of public interest in the construction of the DCP but submits that it is of very narrow scope. The Council submits that:

(a)   there are no additional circumstances which warrant a departure from the usual rule as to costs;

(b)   there is no evidence that the litigation has played a role in resolving a controversy about the construction of the relevant provisions of the DCP, nor that a particular construction has been adopted for a time then a different construction has been adopted so that it was legitimate for judicial clarification; and

(c)   there is no evidence of any widespread concern about the subject matter. It is a very mild matter affecting very few people, being those in the Ashfield municipality concerned with dual occupancy.

Discussion

1. The applicant's property adjoins the property the subject of these proceedings. She orally submitted that she has "no personal interest at all" in the outcome of proceedings. However, in June 2010 the applicant made a submission in response to the notification of the development application. Her submission concerned the proposed new dwelling overlooking her property. Although the applicant does not have a direct interest in the proceedings, it may reasonably be inferred that they were brought with an eye to maintaining her private amenity and that of the neighbourhood.

1. This private interest, of itself, does not necessarily prohibit characterising the litigation as being in brought the public interest. In Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39, 172 LGERA 15 7 Basten JA (McColl JA agreeing) acknowledged that in many cases there will not be a bright line to be drawn between public and private interests. However, so long as a public interest is involved LECR r 4.2 is engaged: at [8] . As Kirby J stated, it is not "the subjective motivation of the litigant but the public or private character of the litigation" which is in issue: Oshlack at [140]. Accordingly, the applicant's motivation in bringing the proceedings does not preclude characterising these proceedings as being brought in the public interest: Caroona at [45]. Nor does the c onfinement of the public interest to a small section of the community. Jacobs J noted in Sinclair v Mining Warden at Maryborough [1975] HCA 17, 132 CLR 473 at 487 that "the interest of a section of the public is a public interest but the smallness of the section of the public may affect the quantity or weight of the public interest ... it does not however affect the quality of that interest."

1. The proceedings were brought to uphold and enforce public law obligations and to ensure that the exercise of power was lawful. I am satisfied that the proceedings have been brought in the public interest.

1. Is there "something more"? The applicant's proceedings are of relatively narrow scope. Although the applicant's claim meets the initial threshold of public interest, in my opinion the only element of her claim which could constitute "something more" is the correct construction of the DCP.

1. The litigation contributed to the proper interpretation of the DCP. However, the issues were narrow and involved discrete points of statutory interpretation, which will have limited application in future .

1. The intended effect of the applicant's proceedings to preserve the amenity of her neighbourhood is relevant. In Hastings the Hastings Point Progress Association represented a group of local residents. Basten JA held that "overdevelopment would affect the amenity of the area within which they lived and owned property" and that the Court was entitled to take into account whether the interests of the association's members stood to be affected in a practical sense: at [11]. His Honour considered this to be a relevant factor in not exercising the discretion in favour of the unsuccessful applicant.

1. In Caroona Preston CJ held that the private purpose of an unsuccessful litigant is relevant to the second and third steps in the process and thus bears on whether the public interest is sufficient to displace the usual rule as to costs: at [45] - [46]. The number of people affected by the litigation is also relevant. The public interest in the applicant's proceedings is confined to a relatively small number of people.

1. In John Williams Neighbourhood Group Inc v Minister for Planning [2011] NSWLEC 100 Sheahan J considered the notion of public interest litigation in the context of a challenge to a Part 3A approval. An association of local residents sought judicial review of the Minister for Planning's approval of construction and ancillary work required for the operation of a private hospital. His Honour h eld that although there were some elements of a broader public interest, including the threat to Blue Gum High Forest in the Sydney Basin, "the real aim of the group bringing the challenge is to preserve the amentiy of the residential neighbourhood where its members reside, in the face of the "threat" posed to it by a six-storey private hospital": at [49]. Even though there was an element of environmental protection, his Honour declined to make a finding that the proceedings were brought in the public interest: at [49]. There is no issue of environmental protection in the current proceedings. John Williams , unlike the current proceedings, concerned an interlocutory application, namely the applicant's motion seeking a maximum costs order, and the Council's application for a security for costs order. The distinction between these circumstances and those of a final costs hearing was acknowledged by His Honour at [4] (omitting citations): "The costs discretion exercised after proceedings are concluded is not exactly the same as the discretion exercised at the interlocutory stage to make a "maximum" and/or a "security" order."

1. When the nature and context of the proceedings are viewed as a whole, they do not, in my opinion, justify exercising the Court's discretion to depart from the ordinary rule as to costs. The proceedings are, in essence, an objection to a neighbouring development which, it appears, will impact on the amenity of the applicant's property. This is not decisive but the proceedings did not raise novel issues of general importance, did not contribute more broadly to the development of administrative law and will not affect a significant section of the public. This is not to say that in every case where a resident objects to a development consent the discretion in r 4.2 should not be exercised. Rather, it is that in these particular circumstances the quality of the public interest is not sufficient to warrant departing from that rule. Something more than mere characterisation of the litigation as being brought in the public interest, sufficient to enliven the discretion, is required. The current proceedings fail in this regard.

1. Accordingly, the Council should be awarded costs of the second phase of the proceedings.

ORDERS

1. The orders of the Court are as follows:

(1)   The proceedings are dismissed.

(2)   The respondent is to pay the applicant's costs until and including 16 December 2010 with the exception of the respondent's notice of motion filed on 8 November 2010 in respect of which there is no order for costs.

(3)   The applicant is to pay the respondent's costs from 17 December 2010.

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Decision last updated: 16 November 2012