Protect Our Parks Incorporated v Wollongong City Council

[2015] NSWLEC 168

Land and Environment Court

New South Wales

Medium Neutral Citation:

Protect Our Parks Incorporated v Wollongong City Council [2015] NSWLEC 168

Hearing dates:

23 October 2015

Date of orders:

23 October 2015

Decision date:

23 October 2015

Jurisdiction:

Class 4

Before:

Craig J

Decision:

1. Give leave to the Applicant to amend its Summons in accordance with the Amended Summons filed in Court today, conditionally upon the payment to the Third Respondent of costs thrown away by reason of the amendments in the pleadings made by that Amended Summons. Those costs to be determined by agreement or as assessed.

 

2. Costs of the Notice of Motion are to be the Third Respondent’s costs in the proceedings.

 

3. Direct that the Applicant file and serve a clean copy of the Amended Summons dated 23 October 2015 by 5.00pm on 26 October 2015.

 

4. Direct that the Third Respondent serve its response to the Amended Summons by 5.00pm on 20 November 2015.

 5. Stand over the proceedings for directions to Friday 27 November 2015.

Catchwords:

PRACTICE AND PROCEDURE – leave to amend summons – ground of challenge amended and further grounds of challenge added – validity of a development consent for demolition and erection of a new building – leave to amend summons granted conditionally upon payment of costs thrown away – nothing extraordinary demonstrated to require costs be paid forthwith – costs of the motion are to be the third respondent’s costs in the proceedings

Legislation Cited:

Crown Lands Act 1989 (NSW)

Category:

Procedural and other rulings

Parties:

Protect Our Parks Incorporated (Applicant)
Wollongong City Council (First Respondent)
Martin Morris & Jones Pty Ltd (Second Respondent)
Skydive the Beach and Beyond Sydney Wollongong Pty Ltd (Third Respondent)

Representation:

Counsel:
Ms J Walker (Applicant)
Submitting Appearance (First Respondent)
Submitting Appearance (Second Respondent)
R Lancaster SC (Third Respondent)

  Solicitors:
Woolf Associates Solicitors (Applicant)
Wollongong City Council (First Respondent)
Heard McEwan Legal (Second Respondent)
Henry Davis York (Third Respondent)

File Number(s):

40555 of 2015

eX TEMPORE Judgment

1. By a Notice of Motion filed on 25 September 2015, the Applicant seeks leave to amend the Summons that it filed commencing these proceedings. That Summons sought to challenge, by way of judicial review, the validity of a development consent granted by Wollongong City Council (the Council) on 10 March 2015 for the demolition of an existing building in Stuart Park North Wollongong and the erection in its place of a new building.

2. Stuart Park is identified in the Summons as being a Crown reserve dedicated for public recreation under s 80 of the Crown Lands Act 1989 (NSW). The ground of challenge stated in the Summons alleges that Skydive the Beach and Beyond Sydney Wollongong Pty Ltd (Skydive), on whose behalf the relevant development application was made, intends to use the new building proposed to be erected in Stuart Park as an administrative building for its principal activities. Those activities involve flying parachutists to an area proximate to and above the beaches of North Wollongong so that they there leave the aircraft and descend onto those beaches.

3. The single ground of challenge stated in the Summons is that the Council lacked power to grant development consent because the purpose for which the proposed building was to be used by Skydive was “a prohibited innominate use for the purpose of commercial premises (office)” under the local environmental plan that controlled development within Stuart Park.

4. The First Respondent in the proceedings is the Council. It has filed a submitting appearance. The Second Respondent is the entity who lodged the relevant development application with the Council on behalf of Skydive. It has also filed a submitting appearance. As a consequence, Skydive, as the Third Respondent, is the only active Respondent in the proceedings.

5. The proposed Amended Summons annexed to the Applicant’s Notice of Motion seeks to amend the Summons in two respects. First it seeks to add to the ground already pleaded, described as the permissibility ground, further averments in support of that ground of challenge. Secondly, the proposed Amended Summons added three new grounds upon which the decision of the Council is said to be invalid. In so doing, it also proposed the joinder of a Fourth Respondent, being a company apparently associated with Skydive.

6. At the commencement of the hearing today, I was informed that Skydive no longer opposed an amended summons being relied upon by the Applicant. That position has come about, so I was told, essentially because the Applicant seeks to rely upon a summons that has been further amended but which does not now contemplate the joinder of a Fourth Respondent. Some detail of the avernments made in the proposed Amended Summons attached to the Notice of Motion have also been amended.

7. The agreement by Skydive to the Amended Summons now proposed by the Applicant has the consequence that the only issue now live before me pertaining to the Applicant’s Notice of Motion relates to costs. That issue falls into two parts. First, there is the question of costs that should be paid by the Applicant to Skydive for costs thrown away by reason of the amendments to the Summons upon which the Applicant now seeks to rely. Second are the costs in respect of the Notice of Motion. Skydive seeks its costs on both counts.

8. In opposing an order for costs thrown away by reason of the amendment, two matters are raised on behalf of the Applicant. First, it submits that it has brought the proceedings in the public interest and, as a consequence, no order for costs should be made against it. Apart from any inference that may be drawn from the name of the Applicant, as an incorporated association, it acknowledges that there has been no evidence adduced directed to the public interest said to be represented by the Applicant. The absence of such evidence at this point of time was explained as being a desire to minimise the cost of so doing. It says that it was not thought appropriate to incur such costs simply for the purpose of arguing the present application.

9. While I accept that explanation for the absence of evidence, I cannot assume that the proceedings have, in fact, been brought in the public interest. Further, I cannot properly draw any inference from the name of the Applicant that it satisfies the requirement for a public interest applicant sufficient to exercise the discretion against an order for costs on that ground. Therefore, the “public interest” submission will not weigh upon my determination when determining the costs order sought by Skydive.

10. The second basis upon which the Applicant opposes an order for costs thrown away is founded upon the proposition that the first or permissibility ground of challenge identified in its original summons has not changed. Rather, it submits that additional paragraphs have been added to this ground that, in effect, provide more particulars supporting that ground.

11. I do not find that argument persuasive. I accept that the permissibility ground is maintained but given the additional matters pleaded to support that ground, it seems to me that Skydive is correct when it submits that, by reason of the amendment, it now has to reconsider the case to which it originally responded and to provide a new response to the additional averments.

12. Further, I cannot overlook the fact that three new grounds of challenge have been added. As it submitted, Skydive is entitled to take a global view of the way in which it should frame its response to the Amended Summons, thereby potentially rendering much of what it has done redundant. That work is not insignificant, thereby resulting in costs that have been unnecessarily incurred.

13. In those circumstances, it does seem to me appropriate that an order should be made in favour of Skydive that allows it to recover costs thrown away by reason of the amendment sought by the Applicant and to which Skydive has now agreed. In so determining, it is not part of my function to give an indication as to the quantum of those costs. That is entirely a matter for the costs assessor. I should also make clear that the requirement for the payment of costs thrown away is the condition upon which I allow the Applicant to rely upon its Amended Summons in the form now proposed.

14. I should add in support of the conclusion that I have reached as to the payment of costs thrown away is that by seeking to amend its Summons, the Applicant, in a sense, seeks an indulgence. The ordinary principle to be applied when an application of that kind is made is that the party seeking the indulgence should bear the costs of so doing. The need or requirement to amend is not, in this case, brought about by any conduct of, or further information provided by, Skydive. That is why, as against Skydive, I have referred to the Applicant as seeking an indulgence.

15. Not only did Skydive seek an order that the Applicant pay its costs thrown away by reason of the amendment, it also sought an order that I direct those costs to be paid forthwith. I accept the submission made on behalf of the Applicant that nothing out of the ordinary has been demonstrated such as would require that additional order to be imposed.

16. The application for costs of the Notice of Motion falls into a slightly different category. The submissions made by the parties suggest, as against each other, that each has withdrawn from a position that was advanced by them concerning the proposed amendment until very recently. On the part of Skydive, it indicates that until a little over two days ago it understood the Applicant to maintain the Amended Summons in a form that would require joinder of the Fourth Respondent. That proposed joinder was the essential basis upon which it opposed the amendments sought. It had prepared for today’s hearing on that basis.

17. On the part of the Applicant, relying upon correspondence exchanged between solicitors for the parties, it submits that in addition to the controversy concerning the proposed joinder of a Fourth Respondent, Skydive had stated that it would oppose the amendment by reason of the second ground of challenge pleaded in the proposed Amended Summons annexed to its Notice of Motion and also included in the Amended Summons which is now before me. That ground of challenge alleges breach of the Crown Lands Act. It was contended by Skydive that the Court lacked jurisdiction to determine that ground of challenge. That necessitated, so it is submitted, the Applicant to prepare for today’s hearing seeking to sustain the inclusion of that ground of challenge.

18. It is apparent from the material before me that the position of the parties as to the course to be taken today has been rapidly evolving. As I have indicated, it was less than three days ago that Skydive’s opposition to the inclusion of ground 2 in the Summons would not be maintained and compromise indicated on the part of the Applicant that it would no longer seek the joinder of the proposed Fourth Respondent.

19. In the circumstances, I am not presently prepared to make an order for costs in favour of either party. What I do propose to do is to order that the costs of the Applicant’s Motion be Skydive’s costs in the proceedings.

20. For these reasons, I make the following orders directed to the Applicant’s Notice of Motion:

1. Give leave to the Applicant to amend its Summons in accordance with the Amended Summons filed in Court today, conditionally upon the payment to the Third Respondent of costs thrown away by reason of the amendments in the pleadings made by that Amended Summons. Those costs to be determined by agreement or as assessed.

2. Costs of the Notice of Motion are to be the Third Respondent’s costs in the proceedings.

21. Having announced those orders, the parties were invited to consider directions appropriate in order to have the proceedings prepared for hearing. After a short adjournment, they handed up Short Minutes of Order which, in substance, I accepted as being appropriate. As a consequence, I make the following further orders by consent:

1. (3)   Direct that the Applicant file and serve a clean copy of the Amended Summons dated 23 October 2015 by 5.00pm on 26 October 2015.

2. (4)   Direct that the Third Respondent serve its response to the Amended Summons by 5.00pm on 20 November 2015.

3. (5)   Stand over the proceedings for directions to Friday 27 November 2015.

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Decision last updated: 29 October 2015