Tarkine National Coalition Inc v Director, Environment Protection; Authority (No 2)
[2024] TASSC 1
•18 January 2024
[2024] TASSC 1
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tarkine National Coalition Inc v Director, Environment Protection Authority (No 2) [2024] TASSC 1 |
| PARTIES: | TARKINE NATIONAL COALITION INC |
| v DIRECTOR, ENVIRONMENT PROTECTION AUTHORITY and VENTURE MINERALS LTD | |
| FILE NO: | 1990/2021 |
| DELIVERED ON: | 18 January 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 3 March 2023 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Procedure – Costs – Depriving successful party of costs – Nature of proceeding - Public interest or duty – Judicial review application by environmental organisation – Successful party allowed half costs of proceedings.
Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72, referred to.
Aust Dig Procedure [1560]
REPRESENTATION:
Counsel:
Applicant: S Molyneux First Respondent: P Turner SC Second Respondent: K Cuthbertson SC, R Chaile
Solicitors:
Applicant: C Bookless First Respondent: Solicitor-General Second Respondent: Davis Advisory Pty Ltd
| Judgment Number: | [2024] TASSC 1 |
| Number of paragraphs: | 55 |
Serial No 1/2024
File No: 1990/2021
TARKINE NATIONAL COALITION INC. v DIRECTOR, ENVIRONMENT
PROTECTION AUTHORITY and VENTURE MINERALS LTD (No 2)
| REASONS FOR JUDGMENT | BLOW CJ 18 January 2024 |
1 The applications before me relate to the costs of an unsuccessful application for judicial review. The applicant, Tarkine National Coalition Inc., applied for the review of a decision of the Director of the Environment Protection Authority ("the EPA") varying conditions that had been imposed in relation to a planning permit for the development and use of a hematite mine by Venture Minerals Ltd. I dismissed the application on 3 March 2023. Thereupon Venture applied for an order that the applicant pay its costs of the proceedings. The Director, who had taken no active part in the hearing but had earlier made discovery, also applied for an order that the applicant pay his costs, such as they were.
2 I adjourned the applications for costs and permitted the parties to make written submissions. The applicant made submissions opposing both applications. Its principal argument was that the judicial review application was a piece of public interest litigation of such a nature that I could and should refuse the applications for costs.
3 In relation to the Director's costs, the applicant also contends that the professional legal work done for the Director in relation to the proceedings should not be the subject of a costs order, but should be funded by the State as work done in the ordinary course of public administration.
4 Both respondents contend that these proceedings were not of such a nature for it to be open to me to refuse orders for costs on public interest grounds.
Public interest litigation
5 The hematite mine site is in a wilderness area known as the Tarkine. I accept that the development of a hematite mine in that place is a controversial matter, and that the development was and is opposed by a significant number of people who are interested in the preservation of Tasmania's wilderness areas. The decision under review in these proceedings was in substance a decision to relax some permit conditions relating to the minimisation of roadkill and the protection of native species, particularly the Tasmanian devil. I accept that the protection of the Tasmanian devil and other native species is a matter of substantial concern to a large section of the Tasmanian public.
6 The applicant is a non-profit incorporated association. It is a registered charity. It raised $30,000 from donors and paid that sum into Court as security for costs at an early stage in the litigation. The applicant's resources are devoted to protecting and promoting the Tarkine region.
7 As a general rule, an unsuccessful party to litigation will be ordered to pay the costs of each successful party. It has been said that there is "a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary": Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460 at 477. That is the general rule in judicial review proceedings, as it is in civil proceedings generally. However there can be circumstances warranting a departure from the general rule when the unsuccessful party has conducted proceedings in the public interest. The leading case on that point is the High Court's decision in Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72.
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8 Mr Oshlack unsuccessfully applied to the Land and Environment Court of New South Wales for a declaration that a development consent was void. His primary argument was that the Richmond River Council had failed to exercise its power properly by unreasonably concluding that the proposed development was not likely to significantly affect the environment of endangered fauna, particularly the habitat of the koala, and by not requiring a fauna impact statement under a statutory provision. After the dismissal of the application, Stein J (as he then was) refused applications for costs by the council and the developer: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236. That decision was reversed by the Court of Appeal but restored by a majority decision of the High Court (Gaudron, Gummow and Kirby JJ, Brennan CJ and McHugh J dissenting). The majority concluded that, because of a very wide provision as to standing in the relevant legislation (s 123 of the Environmental Planning and Assessment Act 1979 (NSW)), the fact that the proceedings had been brought in the public interest was a relevant consideration in relation to the costs applications.
9 The relevant legislation gave the primary judge an unfettered discretion to make orders as to costs. At [20], Gaudron and Gummow JJ listed the factors taken into account by the primary judge, as follows:
"(i) The 'traditional rule' that, despite the general discretion as to costs being 'absolute and unfettered', costs should follow the event of the litigation 'grew up in an era of private litigation'. There is a need to distinguish applications to enforce 'public law obligations' which arise under environmental laws lest the relaxation of standing by s 123 have little significance.
(ii) The characterisation of proceedings as 'public interest litigation' with the 'prime motivation' being the upholding of 'the public interest and the rule of law' may be a factor which contributes to a finding of 'special circumstances' but is not, of itself, enough to constitute special circumstances warranting departure from the 'usual rule'; something more is required.
(iii) The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation 'other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna'.
(iv) In the present case, 'a significant number of members of the public' shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a 'public interest' in the outcome of the litigation.
(v) The basis of the challenge was arguable and had raised and resolved 'significant issues' as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had 'implications' for the Council, the developer and the public.
(vi) It followed that there were 'sufficient special circumstances to justify a departure
from the ordinary rule as to costs'." (Footnotes omitted.)
10 The applicable provision as to standing authorised any person to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the relevant Act, whether or not any right of that person had been or might be infringed. It also provided for such proceedings to be brought by a person on behalf of himself and other persons or a body corporate or unincorporated having like or common interests in the proceedings. At [16], Gaudron and Gummow JJ said the following in relation to that provision:
"What is of present significance is that s 123 relieved a person in the position of the appellant from any requirement to obtain the Attorney-General's fiat and, in the
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alternative to the obtaining of the fiat, from the need to satisfy the requirements of standing which were propounded in Onus v Alcoa of Australia Limited [(1981) 149 CLR 27] …".
11 At [49], their Honours said the following:
"The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ [Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605]:
'Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area.'
Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that "something more" than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs [79]. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case."
12 In his first instance decision (above), at 244, Stein J said:
"…procedural reform to the awarding of costs following the event is necessary if individuals or groups are not to be inhibited from resorting to the courts. Unless this occurs, relaxation of standing may have little significance".
13 In the High Court, Kirby J made a similar comment at [119]:
"If the narrow view which found favour in the Court of Appeal were adopted, it would have the effect, in some cases at least, of impeding or frustrating the achievement of the object which the widening of standing rights was designed to secure."
14 At [134] his Honour made a series of remarks in relation to the costs discretion applicable in the Land and Environment Court and similar discretions. Those remarks included the following:
"Given that statutory context and the clear purpose of Parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of Parliament's particular purposes. The compensatory principle is adequately reflected by the adoption of a general practice by which, ordinarily (including in a case brought by a party under the 'open standing' rule and purportedly in the public interest), costs are ordered in favour of the successful party. However, the general objects of the legislation must also find reflection in orders providing for costs. Regard may therefore be had to any public interest served by the party which has initiated the litigation, although it is ultimately unsuccessful. It has often been said that costs are not awarded against such a party as a punishment. Nor are they awarded to express disapproval of the public or private inconvenience which that party has caused. If the party unreasonably pursues, or persists with, points which have no merit, such conduct will constitute a consideration relevant to the ordering of costs, even in circumstances where that party is generally successful. A particular approach to a party which has ventured upon litigation
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ostensibly in the public interest is not adopted to reward that party's subjective motivation at the cost of another public or private person. As Cole JA pointed out in the Court of Appeal, litigation necessarily engenders cost. The purpose of the jurisdiction conferred to award costs is to permit the fair allocation of the costs which the parties have necessarily incurred. Courts, whilst sometimes taking the legitimate pursuit of public interest into account, have also emphasised, rightly in my view, that litigants espousing the public interest are not thereby granted an immunity from costs or a 'free kick' in litigation. At least this is so unless such an immunity is conferred by Parliament." (Footnotes omitted.)
15 In the light of those judgments, it is necessary to consider the Tasmanian legislative provisions relevant to the standing of an environmental organisation like the applicant to participate in the relevant decision-making processes and to bring proceedings.
The relevant legislation
16 The sequence of events leading up to the decision that the applicant sought to impugn was as
follows:
• In 2012, Venture applied to the West Coast Council for a permit under s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act") for the development and use of a hematite mine. • The applicant made a representation to the Council opposing the granting of the permit. • The EPA provided an environmental assessment report to the Council. • On 21 May 2013 the Council granted the permit sought by Venture. • The applicant appealed from that decision to the Resource Management and Planning Appeal Tribunal ("the RMPAT"). • On 24 September 2013 the RMPAT approved the permit, subject to varied conditions: Tarkine National Coalition v West Coast Council and Venture Minerals Limited [2013] TASRMPAT 103. One of the new conditions prohibited the cartage of iron ore at night. That condition was imposed to reduce the risk of roadkill, particularly in relation to Tasmanian devils. • Years later, Venture made representations to the Director of the EPA seeking relaxation of that condition. • On 15 June 2021 the Director issued an Environment Protection Notice varying the permit conditions by substituting new and less onerous conditions in relation to roadkill. That decision was made pursuant to s 44(1)(d) of the Environmental Management and Pollution Control Act 1994 ("the EMPC Act"). • The applicant applied to this Court for relief under the Judicial Review Act 2000 in relation to the decision of 15 June 2021. 17 Each of the relevant statutes contained a list of the "objectives of the resource management and planning system of Tasmania". Two of them also contained a provision requiring decision- makers to exercise their powers in such a manner as to further those objectives. At all material times s 5 of the LUPA Act provided as follows:
"It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1."
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18 Section 8 of the EMPC Act is in identical terms. Section 5(3) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), which has since been repealed, provided as follows:
"The Appeal Tribunal is part of the State's resource management and planning
system, the objectives of which are set out in Schedule 1."
19 The objectives referred to in those provisions are and were listed in Schedule 1 to each of the LUPA Act, the EMPC Act, and the RMPAT Act. Clause 1 of Part 1 of Schedule 1 to the LUPA Act relevantly included the following:
"1 The objectives of the resource management and planning system of Tasmania
are –… (c) To encourage public involvement in resource management and planning;
and…. (e) To promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State."
20 Identical provisions are and were set out in Schedule 1 to the EMPC Act and Schedule 1 to
the RMPAT Act.
21 The LUPA Act and the RMPAT Act between them contained very wide provisions as to standing in respect of representations to planning authorities, appeals to the RMPAT, and appeals to this Court. At all material times, s 57(5) of the LUPA Act provided that, after an application had been made for a planning permit under s 57 and certain advertising and notification requirements had been complied with, any person could make representations relating to the application to the relevant planning authority. It was pursuant to that provision that the applicant made its representation to the West Coast Council opposing the granting of the permit for the hematite mine.
22 At all material times s 61(5) of the LUPA Act provided as follows:
"If a planning authority grants a permit, any person who … in respect of the application for that permit, has made a representation under section 57(5) may appeal to the Appeal Tribunal against the grant of the permit…".
23 The applicant's appeal to the RMPAT was instituted pursuant to that provision. Prior to 5 November 2021, "Appeal Tribunal" was defined in s 3(1) of the LUPA Act to refer to the RMPAT.
24 The RMPAT Act contained significant provisions relating to appeals to the RMPAT. Section 15(1) permitted any party to be represented by another person, whether a lawyer or not. Section 16(1)(d) required the RMPAT to observe the rules of natural justice. Section 16(1)(e) provided that it was entitled to "hear matters afresh and to take account of new evidence not considered by the person who made the decision which gave rise to the appeal". There were also provisions for public hearings, the making of submissions, and the issue of witness summonses: ss 18(1), 19 and 30.
25 Under s 25(1) of the RMPAT Act, a party to an appeal before the RMPAT was able to appeal to this Court, on a question of law, from any decision of the RMPAT in the appeal. Thus any person or entity who had made a representation to a planning authority under s 57(5) of the LUPA Act had not only the right to be a party to an appeal to the RMPAT, but also, provided it became a party to the RMPAT appeal, the right to appeal to this Court on a question of law.
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26 As I have said, the decision that the applicant unsuccessfully challenged was made by the Director under s 44(1)(d) of the EMPC Act. That provision reads as follows:
"(1) Where the Director is satisfied that in relation to an environmentally relevant
activity –… (d) it is desirable to vary the conditions or restrictions of a permit or major
project permit, or… the Director may cause an environment protection notice to be issued and served on the person who is or was responsible for the environmentally relevant activity."
27 When the Director makes a decision under s 44(1)(d), there are rights of appeal pursuant to s 44(6). That subsection reads as follows:
"(6) A person on whom an environment protection notice has been served or an owner of land to whom an environment protection notice has been forwarded under section 46 (1) (a) may appeal to the Appeal Tribunal against the notice or against any requirement contained in the notice."
28 Prior to 5 November 2021, "Appeal Tribunal" was defined in s 3(1) of the EMPC Act to refer to the RMPAT. Thus an appeal under s 44(6) was a "merits review" appeal by virtue of s 16(1)(e) of the RMPAT Act. The applicant was not a person to whom s 44(6) gave a right of appeal. However it was entitled to be notified of the decision and provided with written reasons for the decision pursuant to s 44(8). That subsection relevantly provides as follows:
"(8) If the conditions or restrictions of a permit … are varied by the issuing of an environment protection notice under subsection (1)(d) …, the Director … must by notice in writing served on any person who made a representation under section 57(5) of the Land Use Planning and Approvals Act 1993 –
(a) notify the person of the variation in the conditions or restrictions of the permit; and (b) provide written reasons to that person for the decision to vary the conditions or restrictions of the permit."
29 The proceeding commenced by the applicant in this Court was not instituted under the LUPA Act, the RMPAT Act or the EMPC Act. It was an application for judicial review. The right to apply to this Court for judicial review of a decision of the Director under s 44(1)(d) is conferred by s 17(1) of the Judicial Review Act 2000. That subsection reads as follows:
"(1) A person who is aggrieved by a decision to which this Act applies may apply
to the Court for an order of review relating to the decision."
30 By virtue of s 7(1)(a) of that Act, "a reference to a person aggrieved by a decision is taken to be a reference to … a person whose interests are adversely affected by the decision". The respondents did not seek to argue that the applicant was not a person aggrieved by the Director's decision. There have been many cases in which environmental organisations have been held to have interests adversely affected by decisions for the purpose of similarly worded judicial review legislation when they were not able to contend that their financial interests or property rights were affected by the impugned decisions. See Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed, at [14.120].
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31 It is worth noting that s 44(8) of the EMPC Act facilitates the making of a judicial review application by an entity in the applicant's position. The applicant was not the person on whom the relevant environment protection notice was served, nor did it receive a copy of that notice as an owner of land. It therefore could not appeal to the RMPAT. However, s 44(8) required it to be given notice of the variation of the permit conditions and to be provided with written reasons because of its status as an entity that had made a representation under s 57(5) of the LUPA Act. The requirement that it be notified of the variation in the permit conditions and provided with written reasons facilitated a challenge to the Director's decision under the Judicial Review Act.
32 There are some other provisions relating to standing in the LUPA Act that should be mentioned even though they did not apply to any of the decisions relating to Venture's permit for the hematite mine. Under s 56, a planning authority (usually the local council) has a power to make minor amendments to a planning permit. Under s 56(3)(d), notice of any such amendment has to be served on "any person who made a representation under section 57(5) in relation to the application for the permit". Such a person then has the right to appeal to the "Appeal Tribunal" pursuant to s 61(3A). Those provisions apply only to decisions by planning authorities, and not to the amendment of planning permit conditions by the Director of the EPA.
Should Oshlack be distinguished?
33 Counsel for Venture argued that Oshlack should be distinguished on a number of bases. First of all, they relied on the fact that Venture is not a public entity. In Oshlack the High Court proceedings concerned the costs of the Richmond River Council, not the costs of the developer. Counsel for Venture relied on the recent decision of Gorton J in Environment Victoria Inc. v AGL Loy Yang Pty Ltd (No 2) [2023] VSC 86. In that case Gorton J accepted, at [14], that it was a relevant factor, weighing against departure from the ordinary rule, that the successful respondents in question, some power companies, were private organisations and not governmental organisations.
34 I accept that Venture's status as a private sector company rather than a public sector entity is a factor that weighs against departure from the ordinary rule and must be given appropriate weight. However, the principles discussed in Oshlack are not confined to applications for the costs of governmental organisations. I agree with the statements of principle made by Gorton J in the Environment Victoria case as follows, at [10]:
"These cases establish that the public nature of any litigation is a factor to which the Court may have regard when exercising its discretion as to costs and that there will be cases where the public benefit arising from, or anticipated by the bringing of, the proceeding justifies a losing claimant not being ordered to pay the costs of a successful defendant. This conclusion will be more readily drawn if the claimant has no immediate stake in the outcome, which will often be the case if it is a not-for-profit charitable organisation. But they do not establish that the fact that a proceeding concerns matters of public interest, of itself, alters the general rule that costs should follow the event."
35 In environmental litigation it will often be the case that a developer is a more appropriate contradictor than a public authority or statutory decision-maker who would ordinarily be expected to remain impartial and submit to whatever decision the court might make. In the circumstances of this case, I do not regard Venture's status as a private sector entity as a strong factor.
36 Counsel for Venture also relied on the fact that the application for judicial review was not made within the statutory regime that contained the wide standing provisions that I have referred to. That is true, but that is a very technical point. The fact remains that the judicial review application was a piece of public interest litigation undertaken for the benefit of Tasmanian devils and other native fauna, and for the purpose of protecting and preserving the environment. I see it as significant that the requirement for notification of the relevant decision and the provision of a statement of
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reasons facilitated the making of a judicial review application by an entity with no right of appeal to
the RMPAT. I infer that that result did not occur by accident.37 Counsel for Venture argued to the effect that the litigation did not raise any question of public interest or public importance. I disagree. I see the issue of the protection of the Tasmanian devil population and other native fauna as a matter of public importance. Further, the review ground relating to the substantial commencement issue raised the question of whether Venture had the right to proceed with its open cut hematite mining operation in a wilderness area without starting from scratch and applying for a new permit. I see that as a question of public importance. It was a question relating to economic development and job creation, as well as the environment.
38 Counsel for Venture argued that the proceeding did not raise any novel question as to the interpretation or operation of legislation. That is true, but that is not a factor that weighs in favour of Venture. If any such question had been raised in the litigation, that would have been a factor that weighed in favour of the applicant, but no such special circumstance can be asserted.
39 Counsel for Venture argued that the applicant's assertions as to the characteristics of the Tarkine area, which it disputed, had "little relevance". That submission related only to the importance of the Tarkine wilderness not to the importance of Tasmanian devils or native fauna. However important or unimportant the wilderness of the Tarkine area is, there are a number of relevant statutory objectives that should be noted. In Part 1 of Schedule 1 of the LUPA Act, one finds the following in the list of objectives:
• "to promote …. the maintenance of ecological processes and genetic diversity": clause 1(a). • "to provide for the fair, orderly and sustainable use and development of … land": clause 1(b). It follows that litigation relevant to those objectives should be regarded as public interest litigation.
40 Another important point is that, if the applicant's arguments as to substantial commencement had succeeded, it would have obtained a curial determination to the effect that Venture did not have a current permit authorising the development and use of an open cut hematite mine. Such a determination would have had the same practical effect as an injunction restraining Venture from continuing its activities and operations. That is to say, it would have had the same practical effect as an order enforcing a provision of the relevant planning scheme.
41 In all the circumstances, and having regard to the statutory objectives that I have referred to concerning public involvement in resource management and planning and the community sharing responsibility for those matters, as well as the wide legislative provisions relating to standing, it is clear that this was a piece of public interest litigation to which the principles referred to in Oshlack may be applied. The public interest in the protection of the environment, particularly in relation to native fauna, is a relevant consideration for me to take into account in relation to the present costs applications.
Merits of the applicant's grounds of review
42 The fact that an interested person or entity has initiated unsuccessful public interest litigation does not, without more, warrant a departure from the usual rule as to costs. If there is to be an exception from the usual rule, "that exception must be found in the circumstances of a particular case": Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661, 194 FCR 250 at [7]; Bob Brown Foundation Inc v Commonwealth [2021] FCAFC 20, 286 FCR 160 at [15].
43 Oshlack was a case in which the unsuccessful applicant had an arguable case and the litigation resolved a number of significant issues relating to the interpretation and future administration of
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statutory provisions. This case did not break new ground in relation to any statutory provisions, and some of the grounds of review lacked merit. There were three grounds of review. From the outset, grounds 2 and 3 had no hope of success. Ground 3 involved a contention that the Director's decision to vary the permit conditions in relation to roadkill changed the fundamental use or development authorised by Venture's permit. But it was still a permit for the development and use of the subject land for an open cut hematite mine, regardless of whether ore trucks were permitted to travel by night. Ground 2 involved a contention that the Director did not have regard to certain statutory objectives set out in Schedule 1 to the EMPC Act, particularly one requiring a precautionary approach. However there was ample material that established that the Director did address the issues relating to roadkill, even though his statement of reasons did not cover every aspect of the submissions made to him by the applicant.
44 However it cannot be said that ground 1 lacked merit. Ground 1 asserted that, as at the date of the Director's decision, Venture's permit was no longer in force, having lapsed pursuant to s 53 of the LUPA Act. The outcome of that ground depended on whether, as at 24 September 2019, the use and development in respect of which the permit had been granted had not "substantially commenced". Venture successfully relied on a body of case law relating to the meaning of "substantially commenced" in planning and building legislation. Those cases established that work done off-site was to be taken into account in determining whether substantial commencement had occurred, but that it was also necessary for some work other than preparatory work to have been undertaken on-site. By 6 June 2014, Venture had caused $28,212 worth of non-preparatory work to be done on-site, and had acquired equipment for the mine worth $1.6 million and arranged for its storage. The acquisition and storage of that equipment resulted in a situation where ground 1 could only succeed if I was satisfied that insufficient non-preparatory work had been done on-site. Venture's contractor had cleared 1.4 hectares of land for the installation of buildings and equipment, created perimeter tracks and a track to the top of a hill, delineated an area of protected flora, and widened the main haul road. No further on- site developmental work of any significance was undertaken between June 2014 and the critical date of 24 September 2019.
45 It was arguable that too little non-preparatory work had been undertaken on-site prior to 24 September 2019 to warrant a finding that the permitted development had substantially commenced before that date. In fact, Venture applied to the West Coast Council and obtained two extensions of time, in September 2015 and September 2017, that would not have been appropriate or necessary if substantial commencement had previously occurred.
46 There was correspondence between the applicant's staff and Venture's solicitors prior to the institution of proceedings about the extent to which on-site works had been undertaken. Prior to the institution of the proceedings however, no enquiries appear to have been made as to the very relevant question of preparations undertaken off-site. In a statement to the Australian Stock Exchange dated 30 June 2014, which was in evidence, Venture disclosed that "plant and equipment including the blade mill and dewatering screen were transported from Melbourne to the Port of Burnie". That information was publicly available, but it is not clear when the applicant became aware of it. It may well be that the applicant was unaware of some of the critical facts relating to the substantial commencement issue until affidavit material was filed and served by Venture in April 2022, nearly eight months after the institution of proceedings.
The security for costs argument
47 On 6 December 2021 Venture made an application for security for costs. It sought an order that the applicant pay into Court a sum to be determined. On 22 December 2021 the applicant offered to pay into Court $30,000 as security for costs. Its solicitor made that offer on a "without prejudice save as to costs" basis in accordance with Calderbank v Calderbank [1975] 3 All ER 333. The offer remained open for acceptance until 10 January 2022. It was not accepted. Venture's application was
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listed for hearing before Holt AsJ. The applicant prepared for the hearing of that application. It filed and served written submissions. However, on 4 February 2022 Venture advised that it would be content with a payment into Court of $30,000, and the applicant agreed. Costs had been incurred by the applicant in preparing for the hearing of the security for costs application. On 10 February 2022 Holt AsJ made consent orders disposing of the application. One of those orders simply read, "Costs reserved."
48 Counsel for the applicant submitted to me that, in the event that it had to pay any costs at all, it should not be required to pay any costs incurred after 10 January 2022 in respect of the application for security for costs, and that Venture should pay its costs relating to that application for the period after that date.
49 Counsel for Venture submitted to me that it was now too late for the applicant to seek such orders in relation to the application for security for costs. That submission was misconceived. Rule 67 of the Supreme Court Rules 2000 provides as follows:
"67 Costs reserved If the Court or judge reserves the costs of a motion, application or other proceeding, those costs are to follow the event unless the Court or a judge otherwise directs."
50 This is precisely the correct stage in the proceedings for the applicant to seek an order under r 67 for part of the costs of the security for costs application not to follow the event.
Conclusion as to Venture's costs
51 The judicial review application was a piece of public interest litigation instituted by a not-for- profit charitable environmental organisation. It concerned matters of public interest, namely the protection of the Tasmanian devil and other native fauna, and the preservation of the environment of the Tarkine wilderness. The applicant pursued three grounds of review. Grounds 2 and 3 lacked merit. Nothing justifying departure from the usual rule as to costs can be found in relation to grounds 2 and 3.
52 However, in my view, matters warranting some departure from the usual rule can be found in relation to ground 1, which concerned the substantial commencement issue. It was arguable that the work done on-site in early 2014 was too little to warrant a finding of substantial commencement, and that practically nothing had been done on-site since that time before the critical date in September 2019. The extent of work done and expenditure incurred by Venture off-site may not have been fully appreciated until affidavit material was filed and served in April 2022. Venture's contentions as to substantial commencement, if found to have been correct, would have resulted not just in the protection of the Tasmanian devil and other native fauna, but in bringing Venture's development and use of the hematite mine site to a standstill. The application, if successful, would have had the same practical effect as an application for enforcement of a provision of the relevant planning scheme. By bringing its application, Venture undertook public involvement in resource management and planning, and sought to take a share of responsibility for those matters, in accordance with the statutory objectives enshrined in the LUPA Act, the EMPC Act, and the RMPAT Act.
53 The work done by the parties' lawyers in relation to the substantial commencement issue was substantially different from the work done in relation to the other issues in the case. It seems to me that the amount of work done in relation to the substantial commencement issue was roughly equal to the amount of work done in relation to the other issues. And, although it is a minor matter, the applicant has made a valid point in relation to the costs of the application for security for costs that were incurred after 10 January 2022.
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54 Taking all those matters into account, I consider that it would be fair and just for the applicant to be ordered to pay one half of Venture's costs, excluding any costs for work done after 10 January 2022 in respect of Venture's interlocutory application filed on 6 December 2021. There will be an order accordingly.
The Director's costs
55 The costs incurred by the Director related to grounds 2 and 3 of the application, not the substantial commencement issue. As those grounds had no merit, I consider that the costs should be borne by the applicant. I order that the applicant pay the first respondent's costs of and incidental to the originating application.
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