McNeill v Avalon Surf Life Saving Club (No 3); McNeill v Avalon Surf Life Saving Club (No 3)
[2013] NSWLEC 192
•08 November 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: McNeill v Avalon Surf Life Saving Club (No 3); McNeill v Avalon Surf Life Saving Club (No 3) [2013] NSWLEC 192 Hearing dates: 6 November 2013 Decision date: 08 November 2013 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [66].
Catchwords: JUDICIAL REVIEW: review of redevelopment of club building sought - alleged lack of notification - validity of amendment to plan of management - car parking, heritage and amenity issues - no breach found - merits issues not within Court's Class 4 jurisdiction - summonses dismissed.
COSTS: whether proceedings public interest litigation - "something more" absent - disentitling conduct by applicant - applicant to pay respondents' costs.Legislation Cited: Environmental Planning and Assessment Act 1979, s 124
Heritage Act 1977
Local Government Act 1993, ss 38-40A, 674
Land and Environment Court Rules 2007, r 4.2
Pittwater 21 Development Control Plan, cl 2.2Cases Cited: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280
Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187
Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1
Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 3) [2013] NSWLEC 152
McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69
McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72
McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 85
McNeill v Avalon Surf Life Saving Club (No 2); McNeill v Avalon Surf Life Saving Club (No 2) [2013] NSWLEC 189
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335Category: Principal judgment Parties: Mr John McNeill (Applicant)
Avalon Surf Life Saving Club (First Respondent)
Pittwater Council (Second Respondent)Representation: Mr J McNeill (in person) (Applicant)
Ms F Berglund (First Respondent)
Miss M Carpenter (Second Respondent)
N/A (Applicant)
N/A (First Respondent)
King & Wood Mallesons (Second Respondent)
File Number(s): 40373 and 40349 of 2013
EX TEMPORE Judgment
Mr McNeill Seeks to Prevent Demolition of the Avalon Surf Life Saving Club
These proceedings relate to the redevelopment and refurbishment of the clubhouse building of the first respondent, the Avalon Surf Life Saving Club ("the ASLSC"), located on Barrenjoey Road, Avalon, New South Wales ("the club").
The applicant, Mr John McNeill, who is self represented, commenced proceedings in Class 4 of the Court's jurisdiction challenging the redevelopment of the club and amendments made by the council to the Plan of Management governing Avalon Beach ("the PoM").
By way of summonses filed 15 and 24 May 2013, Mr McNeill seeks the following relief: first, to prevent the demolition of the club; second "to reverse" the decision of the second respondent, Pittwater Council ("the council"), to amend the PoM; third, to cease all further construction works on the club; and fourth, to "have an inquiry into why a wall shown on the plan as part of the existing building was demolished on day one of these current works".
The two sets of proceedings were consolidated by the Court on 30 August 2013 and were listed for hearing together, with evidence in one matter being relied upon as evidence in the other.
On three prior occasions Mr McNeill has applied to the Court for interlocutory injunctive relief to stop the redevelopment. On each, his application was dismissed for want of a serious issue to be tried:
(a) first, on 17 May 2013 by Pain J in proceedings 40349 of 2013 (McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69);
(b) second, on 28 May 2013 by Sheahan J in proceedings 40373 of 2013 (McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72); and
(c) third, on 7 June 2013 by Biscoe J, following a notice of motion filed on 6 June 2013 in both proceedings (McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 85).
The issues raised in the applications for interlocutory relief are essentially the same issues raised for determination in these proceedings. Mr McNeill has, notwithstanding his lack of success in all three interlocutory applications, neither sought to amend the relief in the summonses nor to produce any new or additional evidence.
For reasons similar to those given in the three judgments referred to above, the summonses must also be dismissed with costs. Mr McNeill has failed to demonstrate any breach of either the Environmental Planning and Assessment Act 1979 ("EPAA") or the Local Government Act 1993 ("the LGA").
The Redevelopment of the Avalon Surf Life Saving Club
It is necessary to set out the history of the redevelopment of the club and the change to the PoM. Much of this background was contained in the council's two affidavits, namely, those of:
(a) Mr Matthew Edmonds, a Principal Officer, Development at the council, sworn 29 August 2013 (together with exhibited documents); and
(b) Mr Christopher Hunt, Director, Urban & Environmental Assets Division at the council, affirmed 29 August 2013 (also together with exhibited documents).
Further factual information was provided by the ASLSC in the form of an affidavit affirmed by the President of the ASLSC, Ms Christine Hopton, on 17 May 2013, and by the Project Director of the redevelopment, Mr Robert Hopton, affirmed 1 November 2013.
Although Mr McNeill relied upon six affidavits at the hearing (sworn 15, 17, 23 and 27 May, 6 June and 16 August 2013), much of the material contained within them was either largely in the nature of submissions, was inadmissible hearsay, or was inadmissible opinion evidence to the extent that Mr McNeill purported to express his views on matters about which he had no expertise or qualifications (for example, engineering, building, town planning and architecture). I have, where appropriate, incorporated his factual material into the chronology below.
Development application DA 0693/10 ("the first DA") was lodged with the council by the ASLSC on 30 November 2010 for "alterations and additions" to the club. Specifically, it sought consent for:
Demolition of the existing change rooms and toilets on the southern end and replacement with new facilities;
A new café and life guard equipment storage area;
Demolition of the 1st floor concrete slab and construction of a new first floor consisting of community rooms and facilities;
Enlarge the ground floor to store surf club equipment and boats;
Create large holding tanks for storm water harvesting.
Pursuant to the Pittwater 21 Development Control Plan ("the DCP"), public notification of the first DA occurred by letter from the council dated 10 December 2010, to 159 nearby property owners and by way of a notice placed in the local newspaper.
On 9 June 2011 the council considered the assessment report relating to the first DA and resolved to approve the development in accordance with the recommendations in that report. In doing so the council noted that:
The proposed development as been applied for and assessed as alterations and additions to the existing building. It is accepted that the proposed works are alterations and additions but the actual extent of the works would be classified as major alterations and additions under Councils Coastal Risk Management Policy.
During the assessment of the first DA the assessing officer completed a "Master Plan Assessor" record. One of the questions the assessing officer was required to answer was whether a notification sign was displayed in respect of the proposed development. The Master Plan Assessor record located in the council's files records that the assessing officer answered this question in the affirmative.
On 20 June 2011 the council granted approval to the first DA and the consent was publicly notified on 24 June 2011 ("the first consent"). The first consent involves '"substantial" alterations and additions to the existing building but not demolition. Approved plans were attached to the first consent.
Prior to the recent amendments to the PoM, the PoM included provision for a "food and beverage outlet" on the ground floor of the ASLSC club. In late 2012 discussions took place between the council and the ASLSC concerning the possible addition of a restaurant on the upper floor of the club building. The council agreed to explore amending the PoM to permit this use.
As an initial step, the council began early community consultation. On 3, 10 and 17 November 2012 the council placed advertisements in the Manly Daily newspaper advising of a proposal to amend the PoM in order to, amongst other things, authorise the proposed restaurant use on the first floor of the club. In addition to placing the newspaper advertisements, the council installed large signs in the Avalon Beach Reserve and placed a notification on the council's website outlining the project.
The council invited interested parties to a community meeting which was held at the Avalon Community Hall on 18 November 2012. Invitations were emailed to the Avalon Chamber of Commerce, the Clareville and Bilgola Plateau Residents Association, the ASLSC, the North Avalon Surf Riders Association, the Avalon Dunes Dunecare Group and the Avalon Historical Society, requesting a distribution of the invitations to their members. Letters were also distributed by letterbox drop to residences in Avalon Parade east of Barrenjoey Road. Forty-seven people signed the attendance sheet of the meeting on 18 November 2012.
Additional meetings were held with the Avalon Chamber of Commerce on 14 November 2012, the Avalon Dunes Dunecare Group on 7 November 2012 and the Avalon Historical Society on that same date.
Following the stakeholder and community meetings, the council refined and finalised a draft PoM for Avalon Beach in December 2012, taking into consideration comments received during the initial consultation phase. These comments included parking, hours of operation, noise, residential amenity, the need for a liquor licence and, in particular, the impact of the restaurant on local businesses. In the draft PoM it was stated that:
The Chamber [Avalon Chamber of Commerce] recognises that there is a unique relationship between Avalon Village and the beach. It is hoped that the restaurant will bring tourists to the area who will also visit the Village due to its close proximity to the beach.
In assessing the draft PoM, consideration was given by some of the councillors (especially Councillor McTaggart) as to whether the footprint was the same between 2007 and 2012 club building. The council considered that the footprint was the same and that the fundamental difference was the inclusion of a restaurant.
At a meeting on 3 December 2012 the council resolved to place the draft PoM on public exhibition and to proceed with advertising it.
On 3 December 2012 the council also resolved to seek tenders from a selection of construction companies who had responded to an Expression of Interest ("the EOI") for undertaking the works the subject of the first consent.
Formal public exhibition of the draft PoM was advertised to occur between 5 December 2012 to 31 December 2012 and 8 December 2012 to 4 February 2013. In fact, submissions received by council were considered up until 6 February 2013. The period of exhibition was extended from the minimum requirement of 28 days because the exhibition was over the Christmas period. Public exhibition of the draft PoM included the notices on council's website, A3 sized posters on the walls at council's customer centres at Mona Vale and Avalon, all of which stated that hard copies were available for inspection, advertisements placed in the Manly Daily and letters and emails were sent to residents.
Following the exhibition period, submissions received were considered by the council and the draft PoM was amended.
On 18 February 2013 the council considered the draft PoM as amended, together with the accompanying report which detailed the exhibition process and the submissions received. It was noted that 92 submissions supported the inclusion of a restaurant and 20 were in opposition. At that meeting, the council resolved to adopt the amended PoM.
On 7 May 2013 development application DA 0110/13 ("the second development application") was lodged seeking consent for alterations to the first consent. The changes included change of use on the first level from a community room to a restaurant and:
Demolition of the existing change room and toilets and constructions of modern facilities, small cafe, security room for life guard and equipment, first floor incorporating community rooms and club facilities.
The application was publicly notified by letter from the council to 70 nearby property owners and by way of notice in the local newspaper. No submissions were received by the council.
On 7 May 2013 the successful tenderer in response to the EOI, Keystone Projects Group ("Keystone"), also took control of the site of the club building and commenced the works. One of the reasons that Keystone was engaged was its capability to complete the works within a timeframe of six months.
On 27 May 2013 application 0693/10/S96/1 was made to modify the first consent ("the modification application"). The proposed modifications included:
Incorporate additional supporting piles to comply with Geotechnical requirements;
Demolish all remaining sections of ground floor slab originally identified as being retained and construct a new concrete slab in its place; and
Demolish all internal walls originally identified as being retained and construct new internal walls in their place.
On 30 May 2013 the council considered an assessment report relating to the modification application and resolved to approve the application. It noted that:
The original development was technically non-compliant with Council's Coastline Risk Management Policy for Development in Pittwater, however an alternate design solution to "construct the SLSC at its current footprint on deep foundations (piles) into the stable foundation zone" was found to be acceptable on merit, as the outcomes of the control could otherwise be achieved.
And that:
The proposed modifications, being the replacement of internal walls and the remaining portions of the existing slab, are not considered to alter the external composition of the built form and are not considered to exacerbate any potential impacts considered during the assessment of the original application.
Pursuant to cl 2.2 of the DCP the council did not notify the s 96 modification application because "in the Council's opinion, [the development] does not have the potential to detrimentally impact adjoining or surrounding land, or significantly alter the height, external configuration or siting of the building".
The council therefore concluded its assessment on the basis that:
...Council can be satisfied that the proposed modifications, involving the replacement of existing internal walls and parts of the existing slab, will not result in detrimental impacts upon the adjoining or surrounding land. Furthermore, upon completion of the development, the proposed works will not be readily visible from the exterior of the building and will not impact upon the height, external configuration or siting of the resultant building.
Accordingly, the council considered that because the proposed modifications were to replace portions of the existing structure and did not alter the resultant built form, the resultant allocation of spaces or the intended use of such spaces, and moreover, the modification was lodged following unexpected complications that had arisen since "demolition works began on the site", the application should be approved.
Thus on 12 July 2013 the council assessed and approved the modification application. At that meeting, extensive consideration was given by the council to the submissions both for and against the proposed modifications, including the replacement of the community room by a restaurant.
Issues Raised by Mr McNeill
The points of claim filed by Mr McNeill in proceedings no 40373 of 2013 and his oral submissions made during the course of the hearing, appear to identify seven issues, or grounds of review, for determination across both sets of proceedings. These may be summarised as follows:
(a) first, that the redevelopment and refurbishment of the club is in breach of the approvals granted by the council because:
(i) the first consent approved additions and extensions to the club whereas the club was largely demolished and replaced with an entirely new club outside the footprint of the old club. Thus the refurbishment and redevelopment is in fact a completely new development to the extent that almost all of the exterior walls of the club were demolished and the new building is both taller and wider (by 6.2m, as calculated by Mr McNeill) than the footprint of the original club; and
(ii) the terms of the first consent could never have been, and was never intended to be, implemented given the extent of the underpinning of the slab required, the fact that the new club is being built "on the wrong side of the flood line" and the need to remove walls marked as "retained". This was evidenced by the fact that one of the walls to be retained was knocked down during construction.
In this regard Mr McNeill relied on a planning principle contained in the decision of Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1. This planning principle states that a development application to alter and add to a building would be taken to be relating to a new building where "more than half of the existing external fabric of the building is demolished" (at [52]). He further drew support from development standards applicable to dwelling houses;
(b) second, that the first consent was not properly notified insofar as required signage was not displayed onsite;
(c) third, that the modification application was not notified as required under the DCP;
(d) fourth, that the PoM was not validly amended by the council. Specifically, that the changes to the PoM were "done under false information presented to the council when they voted on the matter Feb 18". This was because the council had been told that nearby restaurants had been notified of the proposed changes and were in favour of them when in fact this was incorrect. Mr McNeill relied on a petition attached to his affidavit sworn on 16 August 2013 and on email correspondence passing between himself and various councillors in support of the allegation;
(e) fifth, that the new building "does not look like a Surf Club House and will look out of place on Avalon Beach". The iconic nature of the club has been lost;
(f) sixth, that there is insufficient space for car parking to cater for the restaurant and cafe, and therefore, it will be necessary to remove the trees directly behind the club; and
(g) seventh, that Avalon Beach and the club should be heritage listed.
During the hearing Mr McNeill sought to amend the summonses by claiming additional relief to the effect that the Court should order the council and the ASLSC to, at the very least, modify the exterior of the redeveloped and refurbished club to improve its aesthetics and overall amenity. As the Court explained to Mr McNeill, it cannot grant merits relief of this character in proceedings in Class 4 of its jurisdiction, and moreover, even if it could, it would not permit any amendment so late in the proceedings given the potential prejudice flowing to the council and the ASLSC occasioned by the proposed amendment.
It will be convenient to deal with the first and fourth issues separately, the second and third issues together, and the fifth to seventh issues together.
The Club Was Refurbished and Redeveloped in Conformity With the Approvals
In my opinion, the building works that have been carried out to the club have been carried out in accordance with the first and second development consents as modified by the modification approval when regard is had to the terms of those approvals and their attached plans. The applicant has not, in my view, demonstrated any non-compliance with the consents as amended. Rather, Mr McNeill appears to rely solely on the description of the approval on the front page of the first consent in order to allege that the works carried out to the club are non-compliant. An examination of the approvals reveals that the construction is in conformity with that consented to by the council.
The planning principle in Edgar Allan Planning is not relevant to these judicial review proceedings, being a planning principle applicable to merits proceedings brought in Class 1 of the Court's jurisdiction. In any event, the decision has since been superseded by the decision of Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187. Furthermore, no reliance can be placed upon development standards concerned with dwelling houses. The club is not a dwelling house.
With respect to the allegation that the first development consent could never have been implemented given the extent of underpinning required and the need to remove walls marked as "retained" for that work to be carried out, in my view, leaving aside Mr McNeill's lack of expertise and qualifications to make such claims, there is no evidence to suggest that the council has not, and did not intend to, comply with the first development consent. Although, as the council and the ASLSC conceded, a wall was inadvertently demolished during construction, this does not demonstrate any intention to breach the development consent. As Sheahan J noted in McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72 (at [13]):
13 There is, among his materials, a photograph of the result of an admitted building mistake or mishap, but the Council has demonstrated (Exhibit P1) that neither respondent sought to breach the DC, and that both took speedy action to rectify the problem, and keep the builder to the terms of the DC, including the "propping" of walls to be retained (Munn, Annexure 'E').
The evidence before this Court compels the same conclusion.
Accordingly, Mr McNeill has not identified any breach of the EPAA with respect to his the first ground of review and it must be dismissed.
The Approvals Were Properly Notified
In my opinion these grounds of review must also be dismissed for the following reasons:
(a) first, there is no evidence, other than statements made by Mr McNeill from the bar table, that the council failed to display any notification signs regarding the proposed development onsite. The allegation made by Mr McNeill is contrary to the unchallenged evidence of Mr Hunt and the unchallenged evidence of Ms Hopton who stated in her affidavit that "during the assessment of the Development Application (the first development application) I observed signs erected at both the main entrance to the Surf Club and around the swimming pool. Those signs provided notification of the Development Application and were erected for around six months"; and
(b) second, as the factual background above demonstrates, the council did in fact turn its mind as to whether or not the modification application was required to be notified and concluded, correctly in my view, that pursuant to cl 2.2 of the DCP it was not.
The Plan of Management Was Properly Amended and Adopted
No breach of either the EPAA or LGA was identified by Mr McNeill pursuant to this ground of review.
The legislative framework governing amendments to, and the adoption of, plans of management is contained in ss 38 to 40A of the LGA:
38 Public notice of draft plans of management
(1) A council must give public notice of a draft plan of management.
(2) The period of public exhibition of the draft plan must be not less than 28 days.
(3) The public notice must also specify a period of not less than 42 days after the date on which the draft plan is placed on public exhibition during which submissions may be made to the council.
(4) The council must, in accordance with its notice, publicly exhibit the draft plan together with any other matter which it considers appropriate or necessary to better enable the draft plan and its implications to be understood.
39 Notice to owner of draft plan of management
(1) Before giving public notice of a draft plan of management in accordance with section 38, the council must forward a copy of the draft plan to the person who owns or controls the land if the land is not owned by the council.
(2) The council must include in the draft plan any provisions that may properly be required by the person who owns or controls the land.
40 Adoption of plans of management
(1) After considering all submissions received by it concerning the draft plan of management, the council may decide to amend the draft plan or to adopt it without amendment as the plan of management for the community land concerned.
(2) If the council decides to amend the draft plan it must either:
(a) publicly exhibit the amended draft plan in accordance with the provisions of this Division relating to the public exhibition of draft plans, or
(b) if it is of the opinion that the amendments are not substantial, adopt the amended draft plan without public exhibition as the plan of management for the community land concerned.
(2A) If a council adopts an amended plan without public exhibition of the amended draft plan, it must give public notice of that adoption, and of the terms of the amended plan of management, as soon as practicable after the adoption.
(3) The council may not, however, proceed to adopt the plan until any public hearing required under section 40A has been held in accordance with section 40A.
40A Public hearing in relation to proposed plans of management
(1) The council must hold a public hearing in respect of a proposed plan of management (including a plan of management that amends another plan of management) if the proposed plan would have the effect of categorising, or altering the categorisation of, community land under section 36 (4).
(2) However, a public hearing is not required if the proposed plan would merely have the effect of altering the categorisation of the land under section 36 (5).
(3) A council must hold a further public hearing in respect of the proposed plan of management if:
(a) the council decides to amend the proposed plan after a public hearing has been held in accordance with this section, and
(b) the amendment of the plan would have the effect of altering the categorisation of community land under section 36 (4) from the categorisation of that land in the proposed plan that was considered at the previous public hearing.
Remedy or restraint for breaches of the LGA is provided for in s 674 of that Act.
In my opinion, the evidence before the Court plainly demonstrates the valid amendment of the Avalon Beach PoM.
Although Mr McNeill relied upon correspondence passing between himself and several councillors (Ms Selema Griffith, Ms Julie Hegarty and Ms Sue Young), together with email correspondence between himself and the chairman of the Avalon Chamber of Commerce, Mr Chris Hynes, to suggest that in fact restaurants in Avalon had not been notified of the proposed amendments to the PoM, I did not find this correspondence persuasive. It did not demonstrate, as Mr McNeill submitted, that notification of the PoM had not taken place. Further, it was contrary to the unchallenged evidence of Mr Hunt.
I place extremely limited weight on the petition Mr McNeill put before the Court that asked those signing the petition "were you notified by The Avalon Chamber of Commerce in relation to restaurant DA of 2012 and/or the Café DA proposal of 2011? write 'YES' or 'NO' after your signature below". Mr McNeill conceded during the hearing that the 11 signatures in total that he had gathered on the petition did not in fact write 'yes' or 'no' after their name as requested, but that all of the recorded "NOs" had in fact been written by him on the petition as a result of conversations he had had with these individuals.
There having been no identified or demonstrated breach of the LGA or EPAA, this ground of review is rejected.
The Court Has No Jurisdiction to Entertain Merit Issues
The fifth, six and seventh grounds all comprise of merit issues raised by Mr McNeill in respect of the redevelopment and refurbishment of the club which the Court cannot entertain in judicial review proceedings in Class 4 of its jurisdiction.
In particular, in relation to the heritage listing of Avalon Beach and the club, the evidence disclosed that Mr McNeill's attempt to have the club heritage listed was rejected by the NSW Office of Environment and Heritage ("the OEH") on 7 June 2013.
A letter of that date from the OEH to Mr Mark Ferguson, the General Manager of the council, indicated that the Heritage Branch of the Office received a nomination for the club to be listed on the State Heritage Register ("the Register") under the Heritage Act 1977. The letter stated that the nomination was considered at a meeting on 5 June 2013 by the OEH and it was "decided not to progress the site for listing" on the Register. Specifically, on the basis of the information provided with the nomination, the relevant OEH committee considered that the item did not meet the threshold of "State Heritage Significance" to fulfil the Heritage Council criteria for listing on the Register. Finally the letter noted, "in any event it is understood that substantial demolition of the building has already occurred".
Discretion
Even if Mr McNeill had identified or established any breach of the EPAA or the LGA by either the ASLSC or the council, the Court would nevertheless be disinclined to exercise its discretion pursuant to s 124 of the EPAA and grant the relief Mr McNeill seeks.
This is because, principally, as the evidence of Mr Hopton discloses, all demolition works to be carried out under the approvals have already been undertaken and the construction of the new club is currently "around 50% completed with the first floor slab poured, the roof steel fixed and the roofing being installed this week". Mr Hopton anticipates that the construction is likely to be completed by late January 2014.
Further, as Ms Hopton deposed, any delay in the timetable to complete the works to the club building would be likely to cause significant disruption to the surf life saving patrolling season and to the ASLSC's ability to respond to emergencies. In addition, delay in completing the works to the club would cause disruption to community groups using the club building weekly who are waiting to move back in; members of the club who use the gymnasium; and members of the public who use the building for engagement parties, wakes, weddings and birthdays.
The latter point is of some importance because the ASLSC is a not for profit organisation and is largely self funded. It therefore has no income while the club building is not available for hire. Moreover, a delay in completing the works would occasion additional financial burden to the club insofar as it currently expends $280 per month for storage of its equipment for the duration of the building works. Finally, Ms Hopton noted that public amenities are presently limited as there are currently no showers for beach goers and only "very basic toilets". Any delay to the completion of the building works would therefore further impact the amenity of the public in this regard.
Accordingly, when regard is had to the principles set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and other authorities that have applied that decision, the facts of this case render it appropriate to decline to make any orders for relief.
The Court is reinforced in this conclusion given the delay by Mr McNeill in commencing these proceedings. The first development consent was granted on 9 June 2011 whereas these proceedings were not commenced by him until 15 May 2013. In addition, there has been a long history of Mr McNeill failing to comply with orders of the Court, and, in my opinion, Mr McNeill has, by his overall dilatory conduct, displayed a marked want of intention to prosecute his matters in a timely fashion. Mr McNeill's most recent application to vacate the hearing date (McNeill v Avalon Surf Life Saving Club (No 2); McNeill v Avalon Surf Life Saving Club (No 2) [2013] NSWLEC 189) is a manifestation of this attitude. Throughout these delays, however, construction work was commissioned, commenced and has continued on the site.
Costs
Conventionally, costs follow the event in proceedings in Class 4 of the Court's jurisdiction. But despite his lack of success, Mr McNeill submitted that because this was public interest litigation he should not be ordered to pay the ASLSC's or the council's costs of the proceedings.
Rule 4.2 of the Land and Environment Court Rules 2007 states that 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.
The relevant legal principles to be applied by the Court in exercising its discretion pursuant to r 4.2 have been traversed and discussed in many cases (see the seminal decision in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280, as recently discussed and applied in Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 3) [2013] NSWLEC 152).
Having regard to the three step process identified in Caroona, turning to the first step, on balance I accept that Mr McNeill brought these proceedings motivated only by the public interest and not in order to vindicate a private right. However, the nature, extent and other features of any public interest that are involved in this litigation do not constitute "something more" than the mere characterisation of the proceedings as being brought in the public interest as required by the second step. In addition, in my view, Mr McNeill has, as discussed above, engaged in unreasonable conduct in respect of the conduct of the litigation with the result that step three of the test is not satisfied. I make this finding notwithstanding that he is self represented. Mr McNeill's continual delays in the prosecution of his summonses and his persistent agitation of issues wholly devoid of merit have caused the costs in these proceedings to unreasonably escalate.
In all of these circumstances, therefore, the Court does not decline to make an order for the payment of costs against Mr McNeill.
Orders
The formal orders of the Court are as follows:
(1) in proceedings no 40373 of 2013 the summons is dismissed, and the applicant must pay the first and second respondents' costs of the proceedings;
(2) in proceedings no 40349 of 2013 the summons is dismissed and the applicant must pay the first and second respondents' costs of the proceedings including those costs reserved by the Court on 17 May 2013 by Pain J; and
(3) upon publication of this decision, the exhibits are to be returned in both proceedings nos 40373 and 40349 of 2013.
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Decision last updated: 12 November 2013
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