The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (No 2) - [2009] SASC 390

Supreme Court of South Australia
(Land and Valuation Division)
THE CHELTENHAM PARK RESIDENTS ASSOCIATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS (No 2)
[2009] SASC 390
Judgment of The Honourable Justice Bleby
21 December 2009
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES - UNNECESSARY PARTIES AND APPEARANCES - PARTY UNNECESSARILY APPEARING
Application for costs by third defendant to application for judicial review of a decision by a Minister to approve a variation to a Development Plan – plaintiff commenced action against Minister and State – third defendant joined as a party on its own application – third defendant had commercial interest in the land the subject of the variation – whether the question of plaintiff’s liability to the third defendant for costs was reserved when an order was made joining the third defendant as a party – whether third defendant was a necessary party to the action – whether interests of the third defendant were adequately represented by the first and second defendants – consideration of value and relevance of submissions made and evidence led by third defendant – consideration of offer of settlement made by third defendant – no order as to costs made as between plaintiff and third defendant.
Local Government Act 1999 (SA); Supreme Court Civil Rules 2006 (SA) r 74, r 200, r 269, referred to.
Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176; Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2009] SASC 303, discussed.
Oshlack v Richmond River Council (1998) 193 CLR 72; Liverpool City Council v Weir (1984) 51 LGRA 250, considered.

THE CHELTENHAM PARK RESIDENTS ASSOCIATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS (No 2)
[2009] SASC 390
Land and Valuation Division

BLEBY J. On 25 September 2009 I dismissed the plaintiff’s application for judicial review of a decision by the first defendant, the Minister for Urban Development and Planning (“the Minister”), to approve a variation to a Development Plan. The Minister, the State of South Australia (“the second defendant”) and the third defendant, the South Australian Jockey Club Inc (“the SAJC”) each applied for costs. The plaintiff does not oppose an order for costs in favour of the Minister and the State of South Australia but says that there ought to be no order as to costs in respect of the SAJC.
The proceedings
On 17 November 2008 the plaintiff commenced these proceedings seeking judicial review of a decision of the Minister to approve an amendment to the Charles Sturt (City) Development Plan. The summons named the Minister as the first defendant, and the State Government of South Australia as the second defendant. An amended summons naming the State of South Australia as the second defendant was issued on 23 January 2009. I will refer to the first and second defendants together as “the State”.
On its own application, the SAJC was joined as the third defendant on 11 March 2009. The interest of the SAJC in this action is obvious. The chief purpose of the amendment to the Development Plan which is the subject of these proceedings was to rezone a substantial area of land to allow residential development to take place. That land included the site of the Cheltenham Park Racecourse, which was owned by the SAJC. The SAJC has entered into a Land Facilitation Agreement by which it has granted two companies a licence to develop the land. That agreement is conditional upon the authorisation of the Development Plan amendment which was the subject of this action.
The reservation of costs in respect of the joinder of the SAJC
The order that the SAJC be joined as a defendant was made by a Master on 11 March 2009. The orders made that day included:
1.That costs of the parties’ respective attendance including that of SAJC today be costs in the cause.
2.That the SAJC Inc be joined as a defendant to these proceedings.
3.That the costs of the application for joinder as between the plaintiff and the [SAJC] be reserved.
There was some dispute as to the effect of those orders. Counsel for the plaintiff submitted that the Master reserved the question of the plaintiff’s liability to pay the costs of the SAJC in the event that the plaintiff’s action was unsuccessful. The SAJC argued that it was only the question of the costs of the application for joinder that was reserved.
No transcript of the hearing of 11 March was taken. The court record for that day includes the following remarks:
The respective defendants do not oppose the application for joinder of the SAJC. By agreement the costs of the application as between the plaintiff and the SAJC are to be reserved.
On 11 March the plaintiff’s solicitor wrote to the SAJC’s solicitor in the following terms:
We refer to this morning’s directions hearing before Master Burley.
As stated at the hearing, our client did not oppose your client’s application for joinder as a party to the action on the basis that the joinder be subject to the condition that your client will not at any time be entitled to make a claim for costs against the Plaintiff.
We note that our counsel and [counsel for the SAJC] agreed to the question of whether such a condition should be imposed being reserved.
Despite the requests from our counsel that the reservation of the issue be noted by the Court, Master Burley refused to do so and informed the parties to record the reservation in writing.
In our view, the effect of this reservation is that your client, despite being made a party, is not entitled to make a claim for costs against the Plaintiff until such time as the issue of the condition is resolved in your client’s favour.
Please advise whether the above matters record the agreed reservation being [sic] the parties.
The SAJC’s solicitor responded in a letter dated 12 March 2009. Relevantly, the letter read:
We confirm that we were prepared to agree to an order that the question whether there should be imposed as a condition of the joinder of our client that the costs of the action as between our respective clients not be recoverable by the successful party against the unsuccessful party be reserved for determination by the coram which hears and determines the action at first instance. …
We confirm that Master Burley was not prepared to make such an order and made only the following orders as to costs as between our respective clients:
1. The costs incurred in today’s application be costs in the cause.
2.The costs of the application for joinder as between the Plaintiff and the Third Defendant be reserved.
The costs of action could not in any event be ordered against either party until after the final determination of the action.
Accordingly, we suggest in the circumstances that it be agreed between our respective clients that your client is at liberty to apply to the coram which hears the action at the outset of the hearing for an order under Rule 199(4) that there be imposed as a condition of the joinder of our client that the costs of the action as between our respective clients not be recoverable by the successful party against the unsuccessful party. Our client will consent to your making that application at that point and join in asking the coram to decide the question of the condition on its merits (on the basis that this was agreed between the parties before the Master made the order for joinder). Our client will oppose the imposition of the condition (only) on its merits, and not on any procedural ground.
The reference in that letter to r 199(4) was presumably intended to be a reference to r 74(4) of the Supreme Court Civil Rules 2006 (SA) (“the 2006 Rules”), which allows the Court to make an order for joinder of a party on conditions it considers appropriate. In the event, no application for an order under r 74(4) was made.
On 17 March 2009 the SAJC’s solicitors wrote to the plaintiff’s solicitor raising a number of matters, including the following:
We reiterate our client’s acceptance of costs of the action being reserved for further argument.
Nonetheless we advise that in the event of your client being unsuccessful in this matter our client will argue strongly that it should have its costs …
[Emphasis added]
When the matter was listed for directions before me on 6 May 2009, counsel for the plaintiff drew my attention to the correspondence referred to above, observing that it records:
that there’s been an informal agreement to reserve the issue of the costs or the ability to seek costs on behalf of the third defendant as a condition of its joinder. We did not oppose the third defendant’s joinder on the basis that that issue would be argued at a later date and I simply just raise that for your Honour’s notice now. … We would expect that to be argued after the substantive hearing has been determined.
The orders made by the Master on 11 March refer to reservation of the question of “the costs of the application for joinder as between the plaintiff and the third defendant”. On its face that lends support to the SAJC’s position. However, the Master also ordered that the costs of that day’s hearing be costs in the cause. It is difficult to see why the costs of the application itself should have been reserved. There was clearly some discussion at that time about the plaintiff’s potential liability for the costs of the SAJC. In light of the subsequent correspondence between the parties, as well as the other orders and remarks on the court record, I consider that what was reserved was the question of whether the plaintiff was to have any liability to pay the costs of the SAJC in event that the plaintiff was unsuccessful in its action.
The plaintiff’s submissions
The plaintiff opposed an order for costs in favour of the SAJC on four bases. The first three bases are somewhat related. These were that the SAJC was not a necessary party to the action, that its interests in the action were adequately represented by the first and second defendants, and that its submissions and evidence added little that was of substantial value in my consideration of the matter.
The plaintiff advanced a further submission that the public interest favours there being no order as to costs. It is convenient to deal with that issue first. In some cases it will be appropriate to depart from the usual rule that costs follow the event where an unsuccessful plaintiff has commenced proceedings that can be said to be in the public interest.[1] I am not satisfied that this is such a case. The plaintiff submitted that there is a public interest in the amendment of the Development Plan, and in whether the amendment was made according to law. This submission was somewhat inconsistent with the plaintiff’s decision not to oppose an order for costs in favour of the first and second defendants. Furthermore it could be argued that there is a public interest in residential development in suburban Adelaide. There are competing aspects of the public interest in this matter and I am not prepared to make a costs order which is favourable to the plaintiff on the basis that it seeks to further one aspect of the public interest.
[1] Oshlack v Richmond River Council (1998) 193 CLR 72.
The plaintiff referred in argument to r 269 of the 2006 Rules, which provides:
269—Over-representation of parties with common interest
If two or more parties have identical or similar interests but are separately represented and, in the Court’s opinion, unnecessarily so, the Court may exercise either or both of the following powers—
(a)the Court may order that costs to which the parties are entitled be determined on a basis that would be appropriate if they had common legal representation;
(b)the Court may order the over-represented parties to compensate other parties to the action for additional costs incurred by them as a result of the over-representation.
It was submitted on behalf of the SAJC that the defendants in this matter had different interests. The State had an interest in upholding a decision made by a government decision maker but had no direct economic interest at stake. The SAJC had a commercial interest in ensuring that development of the site was able to proceed. In another sense, however, it could be said that all defendants had the same interest in these proceedings. They all sought the same outcome: to have the Minister’s decision upheld. However, it is not necessary to decided this point as the plaintiff has not in fact sought either of the types of order contemplated by r 269.
I now turn to consideration of the plaintiff’s other submissions.
The plaintiff conceded, quite properly, that there was no doubt that the SAJC had an interest in the subject matter of the action within the meaning of r 74(1)(a) of the 2006 Rules. However it was submitted that the interest of the SAJC was no greater than that of an intervener, and that it should be denied costs on that basis.[2] There is some substance in this submission. It was not necessary for the SAJC to be joined as a party in order for all issues related to the dispute to be resolved. The SAJC was joined on its own application because it took the view that this was the way in which it could best protect its commercial interests.
[2] Liverpool City Council v Weir (1984) 51 LGRA 250, 255.
Next, the plaintiff submits that the interests of the SAJC were adequately represented in this matter by the first and second defendants. The SAJC submitted that it was concerned, at the time it sought to be joined, that the first and second defendants were opposing the plaintiff’s action “for political reasons, giving the plaintiff its day in court.” The SAJC apparently feared that the application would not be vigorously opposed by the State and made an assessment that it was necessary to become a party in order fully to protect its interests. Two observations may be made about the SAJC’s submissions on this point. First, there was no evidence before me of the State’s motives for opposing the application for judicial review. I am not willing to draw the inferences for which the SAJC contends. Secondly, the State did in fact oppose the application for judicial review by leading evidence and making submissions, many of which I ultimately accepted. It is true that the State did not oppose the granting of permission to proceed. The test for permission to proceed is the relatively low threshold test of a reasonable basis on which the applicant might establish a right to an order for judicial review.[3] In my view, failure to oppose permission to proceed cannot be taken to indicate that a defendant does not seriously oppose an application for judicial review.
[3] Supreme Court Civil Rules 2006 (SA) r 200(4).
An analogy may be drawn with the English position in relation to planning appeals. While the position of a respondent to a planning appeal is somewhat different from that of a defendant in a judicial review matter, the decision in Bolton Metropolitan District Council v Secretary of State for the Environment[4] does offer some guidance. In Bolton Lord Lloyd of Berwick considered the correct approach in a case where a local authority challenges a decision of the Secretary of State in favour of a developer, and both the Secretary and the developer are respondents to the appeal. Lord Lloyd noted that costs are always in the discretion of the court and that there were no set rules that the court must follow, but nonetheless considered that “the following propositions may be supported:” [5]
(1)The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. …
(2)The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case.
[4] [1995] 1 WLR 1176.
[5] Ibid 1178.
In this case, the issues of law as between the plaintiff and the first and second defendants were exactly the same as the issues as between the plaintiff and the SAJC. There was no separate issue that arose by reason of the SAJC’s interest in the action.
It is relevant to consider the contribution that the SAJC in fact made to the hearing of the application for judicial review. The plaintiff sought to quash the decision of the Minister on any one of three grounds. The first was that the Minister had failed to take into account a relevant consideration, namely the most recent flood plain mapping information for the Torrens Road Catchment area. The second ground was that the Minister’s exercise of power was so unreasonable that no reasonable decision maker could so have exercised the power. The second ground was closely related to the first in that the plaintiffs submitted that the Minister gave so little weight to the flood plain mapping as to make the decision manifestly unreasonable. The third ground was that the Minister failed to take into account a relevant consideration by failing to take into account an open space proclamation that applied to the land. This ground occupied relatively little time at the hearing. By far the main focus of the plaintiff’s case was the Minister’s use of the flood plain mapping information. At the heart of the plaintiff’s case was the submission that the Cheltenham Park site ought to be used for stormwater management rather than for residential development.
The hearing proceeded largely by way of affidavits. The SAJC filed two affidavits to which were exhibited various materials relating to stormwater management. One deponent to an affidavit, Mr Pitman, was called for cross-examination by the defendants. Mr Pitman is a civil engineer with a particular interest in hydrology. His affidavit covered a number of topics including the effect of the flood plain mapping and the effect of development of the Cheltenham Park site on flooding potential in the catchment area. He was cross-examined by counsel for the SAJC, mainly on technical aspects of stormwater management.
Counsel for the SAJC made detailed submissions about the provisions relating to stormwater management set out in the Local Government Act 1999 (SA) and in relevant planning documents and other materials that were before the decision maker. Counsel for the SAJC invited me to make findings of fact in relation to quite technical aspects of stormwater management. Much of the SAJC’s case was directed towards persuading me that, from a planning point of view, it was not necessary for the Cheltenham Park site to be devoted to stormwater management.
The matters advanced by the SAJC did not prove to be of great assistance to my determination of the matter. I found that the flood plain mapping was not a matter that the Minister was required to take into account. In rejecting the ground based on Wednesbury unreasonableness, I made the following observations:[6]
To succeed, the plaintiff would have to demonstrate that the flood plain mapping was of overriding and compelling significance to discount almost entirely all the other factors which the Minister was entitled properly to take into account in the public interest, such as the need for infill housing, the desirability of securing open space accessible to the public as well as the desirability of ensuring that any future site development should include a wetlands component. To give such weight to the one single factor relied on by the plaintiff would itself constitute unreasonableness in the decision-making.
[6] Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning [2009] SASC 303, [72].

In arriving at these conclusions, I did not need to consider the wisdom of a decision to use the Cheltenham Park site for residential development rather than stormwater management. I did not need to have regard to the majority of the evidence and submissions made on behalf of the SAJC.
In summary, there are a number of factors in favour of the plaintiff’s argument. The SAJC was not a necessary party to the case. There was no separate issue on which it was entitled to be heard. It was joined as a defendant on its own application as it wished to protect its commercial interests. It was aware that the plaintiff, if the claim failed, might seek an order that it not pay the SAJC’s costs. The SAJC did contribute some material and submissions that were different from those advanced by the first and second defendants. However, most of that material was of minor relevance to the issues before me and was of little use in determining the matter. In addition the presence of the SAJC increased the length and expense of the hearing for all parties. In these circumstances it is appropriate that the SAJC bear its own costs.
An offer made by the SAJC
By a letter from the SAJC’s solicitors to the plaintiff’s solicitors dated 17 March 2009 the SAJC offered to forego its costs if the plaintiff discontinued its action. The SAJC sought to rely on this letter in support of its application for costs. While I accept that an offer by a party to bear its own costs can be a major concession, in the circumstances of this case the offer has less significance. The question of whether the SAJC would be entitled to claim any costs from the plaintiff at all was, and remained, very much a live issue. That much is acknowledged at the beginning of the letter of 17 March 2009, in which the SAJC’s solicitors “reiterate our client’s acceptance of costs of the action being reserved for further argument.” I have concluded that the SAJC is not entitled to its costs. For those reasons, an offer by the SAJC to bear its own costs can have little weight in its application for costs.
Conclusion
For these reasons, there will be an order that the plaintiff pay the costs of the first and second defendants to be adjudicated and that there be no order as to costs as between the plaintiff and the third defendant.