COSTS — applicant unsuccessful in judicial review proceedings — whether personal costs order against public officer of incorporated applicant should be made — public officer of the applicant not the “real party” to the proceedings — whether departure from usual costs rule justified — whether proceedings were brought in the public interest within meaning of r 4.2(1) of the Land and Environment Court Rules 2007 — whether there was something more — proceedings contributed to proper understanding of the law — whether there were countervailing circumstances — parties to pay their own costs
Quick Take
1Under r 4.2(1) of the Land and Environment Court Rules 2007, an unsuccessful applicant in judicial review proceedings challenging a development consent may avoid a costs order where the proceedings are characterised as brought in the public interest and involve 'something more' — here, the contribution to the proper understanding of the integrated development regime under Division 4.8 of the EPA Act, including clarification of whether it operates as an 'opt-in/opt-out' regime, satisfied that requirement.
2A public officer of an incorporated community association who is also a local resident objector is not the 'real party' to the litigation merely by virtue of residing in the locality and having submitted objections; a personal costs order under the Tinda Creek/Knight v FP Special Assets principles requires evidence that the non-party created or controlled the entity as a vehicle to stand in front of them, which was not established on the facts.
3That members of an applicant association live in proximity to a development and may be motivated in part by local amenity concerns does not preclude characterisation of proceedings as public interest litigation where broader environmental and legal issues — such as protection of koala habitat, proper administration of development applications, and clarification of statutory regimes — are genuinely at stake.
