Black Hill Residents Group Incorporated âe" INC1900196 v Marist Youth Care Limited (t/as Marist180) (No 6) [2021] NSWLEC 113 (20 October 2021)

Case Name:	Black Hill Residents Group Incorporated – INC1900196 v Marist Youth Care Limited (t/as Marist180) (No 6)
Medium Neutral Citation:	[2021] NSWLEC 113
Hearing Date(s):	27 August 2021, 16 September 2021, 1 October 2021 (written submissions)
Decision Date:	20 October 2021
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders as follows: (1) The Applicant must pay the First Respondent’s costs of the notice of motion dated 31 May 2019 as ordered 6 June 2019 as agreed or assessed. (2) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited [2019] NSWLEC 112 (Black Hill No 1) as agreed or assessed. (3) The Applicant must pay pursuant to order 6 made on 30 August 2019 the First Respondent’s costs thrown away by amendments made to the further amended summons filed 29 August 2019 as agreed or assessed. (4) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (No 2) [2019] NSWLEC 137 as agreed or assessed. (5) Each party to pay its own costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) [2020] NSWLEC 82 (Black Hill No 3). (6) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 4) [2021] NSWLEC 11 as agreed or assessed. (7) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist 180) (No 5) [2021] NSWLEC 43 as agreed or assessed. (8) The Applicant must pay the First Respondent’s costs of this costs application as agreed or assessed. (9) Pursuant to r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW), the Registrar is to pay to the First Respondent’s solicitors Colin Biggers & Paisley out of Court the sum of $40,000.00, being the funds paid into Court by the Applicant as security for the First Respondent’s costs of the proceedings.
Catchwords:	COSTS – unsuccessful civil enforcement proceedings by incorporated association – intensive therapeutic transitional care (ITTC) facility did not require development consent under the Environmental Planning and Assessment Act 1979 (NSW) – applicant unsuccessful in relying on public interest provision under r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) to resist costs order – various orders made in relation to interlocutory notices of motion in addition to substantive proceedings
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 Civil Procedure Act 2005 (NSW) s 98 Environmental Planning and Assessment Act 1979 (NSW) Pt 5 (s 5.5) Land and Environment Court Act 1979 (NSW) s 63 Land and Environment Court Rules 2007 (NSW) r 4.2 Newcastle Local Environment Plan 2012 Land Use Table State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 42, 43 Uniform Civil Procedure Rules 2005 (NSW) rr 1.5 41.3, 42.1, 42.21
Cases Cited:	Black Hill Residents Group Incorporated v Marist Youth Care Limited [2019] NSWLEC 112 Black Hill Residents Group Incorporated v Marist Youth Care Limited (No 2) [2019] NSWLEC 137 Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) [2020] NSWLEC 82 Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 4) [2021] NSWLEC 11 Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) [2021] NSWLEC 43 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434 Latoudis v Casey (1990) 170 CLR 535; [1990] HCA 59 Local Democracy Matters Inc v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140 Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 Millers Point Fund Incorporated v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29 Oshlack v Richmond River Shire Council (1994) 82 LGERA 236
Category:	Costs
Parties:	Black Hill Residents Group Incorporated (Applicant) Marist Youth Care Limited (t/as Marist180) (First Respondent) Minister for Families, Communities and Disability Services (Second Respondent)
Representation:	Counsel: T Hale SC and P Hart (Applicant) P Tomasetti SC and J Doyle (First Respondent) Solicitors: Nicholas Dan (Applicant) Colin Biggers & Paisley (First Respondent)
File Number(s):	2019/159914

1 In Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) [2021] NSWLEC 43 (“Black Hill No 5”) I dismissed the Applicant’s second further amended summons seeking a declaration that the establishment of an intensive therapeutic transitional care (ITTC) facility by the First Respondent Marist Youth Care Limited (t/as Marist180) (Marist) at a property in Black Hill (the property) required development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Costs were reserved. The ITTC facility was conducted on behalf of the Minister, the Second Respondent. The issue of costs in the overall proceedings including in relation to numerous interlocutory matters remains outstanding.

2 The Applicant is an incorporated association registered on 13 February 2019. Marist is seeking that its costs be paid by the Applicant. The Minister is not seeking costs from the Applicant. Marist no longer presses a costs claim against the Minister.

3 Under s 98 of the Civil Procedure Act 2005 (NSW) (CP Act) costs are at the discretion of the Court subject to any court rules. Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) costs follow the event, subject to the exercise of the Court’s discretion. Rule 42.1 of the UCPR applies in the Court in Class 4 proceedings pursuant to r 1.5 and Sch 1 Col 2 of the UCPR. The Applicant relies on r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) (LER) which states:

4 At issue in the substantive proceedings was whether development consent under the EPA Act was required for the operation of an ITTC facility carried out on behalf of the Minister at the property.

5 Clause 43(1) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) stated:

7 The Applicant alleged firstly that the activity was not correctly characterised as a transitional group home as defined in cl 42(1) of the ARH SEPP and was not therefore permitted by cl 43(1)(a). Secondly, that the activity was not being carried out on behalf of a public authority for the purposes of cl 43(1)(a) of the ARH SEPP.

8 The ITTC facility was being carried out at the property which was zoned E4 Environmental Living (E4 zone) under the Newcastle Local Environment Plan 2012 (Newcastle LEP). The objectives of the E4 zone are:

9 Dwelling houses are permitted with consent in the E4 zone. The definition of “prescribed zone” (b) for the purposes of cl 43 of the ARH SEPP includes the E4 zone as houses are permitted. The house on the property had less than 10 bedrooms, comprising four bedrooms, two lounges, one rumpus room, one kitchen and three bathrooms (Black Hill No 5 at [37]). It required minimal modification to render it fit for the purpose of an ITTC facility (Black Hill No 5 at [3], [25]). Additional work undertaken was filling in a dam and putting up new fencing (Black Hill No 5 at [25]).

10 The Applicant was unsuccessful in arguing that the activity ought to be characterised as “hospital”, “health services facility” or “office premises”, being defined terms in the Newcastle LEP. I held in Black Hill No 5 at [142] that the activity could be characterised as a transitional group home, operating as a refuge providing temporary accommodation for vulnerable young people and was permissible in the E4 zone.

11 The Applicant was also unsuccessful in arguing that the ITTC facility was not being carried out on behalf of the Minister. Both Marist and the Minister submitted that the activity was being carried out on behalf of the Minister, a compelling submission which I found was also supported by the evidence (Black Hill No 5 at [144]-[150]). The statutory care and protection of young persons scheme under the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Children and Young Persons (Care and Protection) Regulation 2012 was considered at some length in answering the issues raised in Black Hill No 5 at [134], [136], [147] and [149].

12 As the Applicant was unsuccessful no declaration was made and no order restraining the use of the property as sought in the second further amended summons was made. The Applicant read five lay witness affidavits said to be relevant to the exercise of the Court’s discretion, which did not ultimately arise for consideration. The affidavits attested to concerns about excessive traffic movements near the property, noise and privacy concerns, summarised in Black Hill No 5 at [18]-[22]. I consider these are relevant on the question of public interest in this judgment.

14 On 31 May 2019 the Applicant filed a notice of motion dated 31 May 2019 seeking leave to rely upon an amended summons. On 6 June 2019 Robson J granted the Applicant leave to rely upon the amended summons. His Honour noted Marist’s undertakings to the Court in relation to the property, made further orders for the management of proceedings and ordered that “costs of all interlocutory proceedings prior to and on the date of the orders were to be costs in the cause”.

15 On 29 July 2019 Marist filed a notice of motion dated 29 July 2019 seeking to set aside the Applicant’s further notice to produce dated 26 July 2019.

16 On 6 August 2019 in Black Hill Residents Group Incorporated v Marist Youth Care Limited [2019] NSWLEC 112 (“Black Hill No 1”) Marist’s notice of motion dated 29 July 2019 was considered. Robson J made orders reproduced below:

17 The first hearing on the substantive matter was set down for 19 and 20 August 2019 before me. On 13 August 2019 shortly before the hearing was to commence on 19 August 2019, a “Review of Environmental Factors” (REF) was completed by SJB Planning (NSW) Pty Limited in relation to the activity on the property at the request of the Minister. The Minister gave notice to the Applicant on 5 July 2019 that a REF was being prepared. On 16 August 2019 the Executive Director of the (former) Department of Family and Community Services NSW considered the REF complied with the obligations of a determining authority pursuant to s 5.5(1) of the EPA Act and approved “the ongoing use of the Black Hill ITTC subject to the conditions proposed in the REF”. On 16 August 2019 the Applicant filed a notice of motion to vacate proceedings. On 19 August 2019 the hearing was vacated by consent. The orders I made on 19 August 2019 were:

18 On 26 August 2019 Marist filed a notice of motion dated 26 August 2019 seeking expedition.

19 On 29 August 2019 the Applicant filed a further amended summons deleting the ground alleging failure to carry out an assessment under Pt 5 of the EPA Act referred to in the amended summons. On 30 August 2019 Robson J made orders by consent as follows:

20 On 5 September 2019 Marist filed a notice of motion dated 4 September 2019 seeking orders pursuant to UCPR r 42.21 that the Applicant provide security for Marist’s costs.

21 On 24 September 2019 Marist’s notice of motion filed on 26 August 2019 seeking expedition was withdrawn. Robson J made no order as to costs.

22 On 27 September 2019 Black Hill Residents Group Incorporated v Marist Youth Care Limited (No 2) [2019] NSWLEC 137 (“Black Hill No 2”) was delivered. Robson J ordered at [64] that:

24 On 11 December 2019 the Applicant filed a notice of motion dated 11 December 2019 seeking an order pursuant to s 63 of the Land and Environment Court Act 1979 (NSW) that leave be granted to Mr Adam Fairbairn and Mr Philip Clulow to represent the Applicant in these proceedings and such other orders as the Court deemed fit. On 13 December 2019 I made the following orders:

25 On 17 December 2019 leave was granted to the Applicant to rely on a second further amended summons.

26 On 17 December 2019 Marist filed a notice of motion dated 17 December 2019 in court seeking an order that the proceedings be dismissed as incompetently commenced, which was then heard on 18 December 2019 and subsequent days in 2020. On 18 December 2019 the substantive hearing dates for 19 and 20 December 2019 were vacated. The Applicant was not legally represented at the December 2019 hearing.

27 On 9 March 2020 the Applicant filed a notice of motion dated 3 March 2020 seeking to set aside Marist’s notice to produce dated 20 February 2020.

28 On 20 March 2020 objections to the affidavit of Mr Fairbairn dated 10 February 2020 and the Applicant’s notice of motion dated 3 March 2020 were heard. Judgment was reserved.

29 On 30 June 2020 in Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) [2020] NSWLEC 82 (“Black Hill No 3”) I made findings in relation to Marist’s notice of motion dated 17 December 2019. No final orders were made at that stage.

31 On 11 August 2020 hearing dates of 20-23 April 2021 were allocated to the substantive matter (on 9 December 2020 these were varied to 19, 20 and 21 April 2021).

32 On 3 September 2020 without admission, Marist withdrew its notice of motion dated 17 December 2019, the subject of Black Hill No 3. Costs of the notice of motion dated 17 December 2019 were reserved.

34 On 25 November 2020 a mention was held and orders made on 3 September 2020 were varied by consent. By consent I ordered the Applicant to pay Marist’s and the Minister’s costs of the mention.

35 On 7 December 2020 the Applicant filed a notice of motion dated 7 December 2020 seeking leave to file a third further amended summons.

36 On 21 January 2021 the Applicant filed a notice of motion dated 21 January 2021 seeking to set aside a notice to produce filed on behalf of Marist on 24 December 2020. The parties resolved the motion by 1 February 2021.

37 On 1 February 2021 the Applicant’s notice of motion dated 7 December 2020 was heard. On 12 February 2021, in Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 4) [2021] NSWLEC 11 (“Black Hill No 4”) I dismissed the Applicant’s notice of motion dated 7 December 2020. Costs were reserved.

38 On 19 April 2021 the Minister filed a notice of motion dated 18 April 2021 which was withdrawn on 21 April 2021.

40 On 17 May 2021 Black Hill No 5 was decided as outlined above in [1 ], with costs reserved.

41 In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 (“Caroona”) (summarised in Local Democracy Matters Inc v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140 (“Local Democracy No 4”) at [6]-[9]), Preston CJ identified a three step approach to determine whether to depart from the usual costs rule in certain proceedings (at [13]-[20]) as follows:

(1) first, can the litigation be characterised as having been brought in the public interest;

(2) second, if so, is there “something more” than the mere characterisation of the litigation as being brought in the public interest; and

(3) third, are there any countervailing circumstances, including those relating to the conduct of the applicant, which speak against a departure from the usual costs rule in respect of public interest litigation.

42 In relation to the first step, Preston CJ in Caroona endorsed the following summary in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; [2004] NSWLEC 434 (“Engadine”) at [15] of the factors that assisted in determining whether litigation could properly be characterised as having been brought in the public interest:

(2) whether that interest was confined to a relatively small number of members from the group or association in the immediate vicinity of the development, or whether the interest was wider, involving a significant number of members of the public and was concerned with a wider and significant geographic area;

(4) whether the prime motivation of the litigation was to uphold the public interest and the rule of law; and

(5) whether the applicant had a pecuniary interest in the outcome of the proceedings.

43 In Caroona at [60], at least five categories of cases containing additional factors (the “something more”), were identified namely whether:

(2) the litigation contributed, in a material way, to the proper understanding, development or administration of the law;

(3) the litigation was brought to protect the environment or some component of it, and the environment or component was of significant value and importance;

44 In relation to the third step, the following are some of the countervailing circumstances that may weigh in favour of the application of the usual costs rule (Caroona at [61]):

(1) the applicant was seeking to vindicate rights of a commercial character and stood to benefit from the litigation;

(2) where the applicant was an incorporated association, the private interests of members of the association would have been affected, legally or financially by the outcome of the litigation;

(3) the applicant was supported financially by persons or bodies who benefited from, or would have had their legal or financial interests affected by, the outcome of the litigation;

(4) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications;

(5) the applicant unreasonably pursued or persisted with points which had no merit or issues that were not eminently arguable; and

(6) there was disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation.

(1) The Applicant is to pay Marist’s costs of the proceedings (including any of its costs of applications which have been reserved and the costs of obtaining these costs orders) as agreed or assessed, excepting Marist's costs thrown away in relation to the Applicant's claim that the Minister breached s 5.5 of the EPA Act.

(2) The $40,000 held by the Court paid by the Applicant as security for Marist's costs is to be released to Marist forthwith.

46 Marist has been successful and should be awarded its costs payable by the Applicant. There is no proper reason why costs of the substantive proceedings should not follow the event.

47 All four reserved costs decisions on 6 August 2019 in Black Hill No 1, on 27 September 2019 in Black Hill No 2, on 3 September 2020 following Black Hill No 3 and on 12 February 2021 in Black Hill No 4 should follow the overall event in the proceedings so that the Applicant should pay these also.

48 Costs were reserved on 6 August 2019 for a notice of motion filed by Marist to set aside the further amended notice to produce dated 26 July 2019 that had been served by the Applicant. The motion was determined by Robson J by his judgment recorded in Black Hill No 1. Substantial parts of the notice to produce were struck out, with other provisions in the notice curtailed.

49 On 27 September 2019, Black Hill No 2 made the orders extracted above in [22 ] in answer to Marist’s successful application for security for costs.

50 On 3 September 2020, Black Hill No 3 found that the proceedings were not commenced competently by the Applicant and gave the Applicant the opportunity to ratify the proceedings (Black Hill No 3 at [124]).

51 On 12 February 2021, Black Hill No 4 dismissed the Applicant’s notice of motion seeking leave to file a third further amended summons.

53 The proceedings were not brought in the public interest such that the Court should depart from the usual rule. Relevant observations were made by Robson J in Black Hill No 2 at [49], [56], [57], [63] as follows (emphasis added):

54 Robson J concluded that a security for costs order ought to be made in the amount of $40,000. No further evidence has been adduced to warrant a change to this preliminary view. The admitted lay evidence does not suggest any interest extending beyond the interests of the Applicant’s members to avoid what they considered were the planning impacts of the ITTC facility on their enjoyment of their private properties.

55 The Applicant’s members have a pecuniary interest in the outcome of the proceedings, being to protect their investment in the properties. Submissions filed by the Applicant's solicitor and signed by the Applicant's senior counsel dated 22 January 2021 for the substantive hearing stated at [17(e)]: “The Applicant brings these proceedings in order to protect the interest of property owners within close proximity to the subject land.”

56 The proceedings are not in the public interest and even if found to be, no “something more” as identified in Caroona arises. That the Applicant’s case raised four separate legal grounds which were complex and involved sophisticated legal argument is not sufficient, as identified in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [12].

57 The Applicant’s interest is confined to a relatively small number of members and those said to be affected by the facility was limited. No impact beyond a planning impact on adjoining neighbours was identified in the lay evidence. This matter is entirely unlike Local Democracy No 4.

58 The prime motivation of the litigation was to prevent feared impacts on private properties.

59 Facilitating an appeal by not making a costs order in Marist’s favour is not relevant even if public interest is found to exist. Costs concern the proceedings in which Marist was successful.

60 The Applicant seeks to avoid paying the costs of Marist’s challenge to the competency of the Applicant’s claim on the basis that the application was “determined in favour of the Applicant”.

61 That submission is wrong. The Court did find that the proceedings had been commenced incompetently because of the finding in Black Hill No 3 at [151] that: “The necessary ratification of the decision to commence these proceedings has yet to be made by the committee of BHRG Inc.”

62 Consequent upon what the Court described in Black Hill No 3 at [153] as “BHRG Inc’s predicament”, the Court on 14 July 2020 made orders requiring the Applicant to take steps to convene a meeting of its managing committee to make a valid resolution so as to legitimise the Application. The Court ordered on 14 July 2020 that on or before 28 July 2020 the Applicant was to file and serve any evidence to be relied upon as establishing the making of a “sufficiently precise resolution ratifying these proceedings” as per Black Hill No 3 at [159].

63 The Court did not dismiss the Applicant’s claim because it found in Black Hill No 3 at [154]: “a consequence of incompetently commenced proceedings is not necessarily their dismissal”.

64 It was essential for the cause of incompetency to be addressed before the Court could lawfully determine the Applicant’s claims. The challenge to competency was therefore an essential and appropriate step in the case. There is no reason to exclude it from the cost orders in Marist's favour.

65 Similarly, the submission that “the First Respondent's application to set aside the notice to produce was unsuccessful” is wrong. The relevant motion challenged a notice to produce that had been drafted in unacceptably wide and therefore oppressive terms. It was also served late so as to add to the prejudice to Marist. The judgment of Robson J in Black Hill No 1 upheld Marist’s complaints in that regard and required the schedule to be narrowed. The application was therefore successful, albeit that the Court allowed for the production of a more limited schedule of documents.

(2) The security for costs amount of $40,000 be released to the Applicant forthwith.

(3) Marist pays the Applicant’s costs in relation to the application to set aside the notice to produce as set out in Black Hill No 1.

67 In addition, the Applicant should not have to pay Marist’s costs thrown away as a result of the adjournment of the first hearing in August 2019.

68 The Applicant submits that the ordinary rule as to costs should be displaced as the litigation should be classed as being brought in the public interest. The security for costs amount should be released to the Applicant.

69 Rule 4.2(1) of the LER provides a basis for no award for costs against an unsuccessful applicant if the Court is satisfied the proceedings were brought in the public interest. The concept of public interest is broad, see factors identified in Caroona and Millers Point Fund Incorporated v Lendlease (Millers Point) Pty Ltd (No 2) [2017] NSWLEC 29 (“Millers”).

70 Firstly, there was clear public interest in this case to ensure that the respondents were establishing and operating an ITTC facility in accordance with the EPA Act. The development of ITTC services relied on an assumption that these fall within the existing legislative framework for transitional group homes which were exempt from development approval and from environmental assessment. Whether the respondents could rely on that assumption is a matter of significant public interest.

71 At issue in these proceedings was whether the ITTC facility came within the exception in cl 43 of the ARH SEPP. Marist asserted that it was entitled to carry out the development without consent. There was no transparency in this decision. It was clearly reasonable for residents to fund these proceedings in order that an independent body, the court, could determine the lawfulness of what was taking place. This was not a case in which the Applicant was challenging the validity of a development consent. It was not in dispute that under the Newcastle LEP the ITTC facility was prohibited development in the E4 zone, which applied to the subject land. Nor can it be disputed that the development was contrary to the objectives of that zone (extracted above in [8 ]). Plainly enough, landowners in the locality, including those who since 2012 purchased in the locality, assumed that development in the locality would continue to conform to the objectives and controls in the Newcastle LEP. The ITTC facility on the property does neither, as the evidence of the residents reveals. This was particularly reasonable given the objectives of the E4 zone.

72 Secondly, the Applicant did not stand to gain from these proceedings financially.

73 In relation to “something more” the Court in Millers took into account that complicated questions of statutory construction were raised and that the legal issues raised contributed to the proper understanding of the law. The same applied in this matter.

74 No countervailing circumstances arise. The case was conducted reasonably and properly. The Applicant had not acted in any commercial capacity or sought financial gain.

75 In Black Hill No 3 at [158] the Court did not accept that the Applicant was a vehicle for a small number of members engaged in a frolic of their own. The membership of the Applicant is broad and not limited to the immediate neighbours of the property.

76 Marist is well funded and entered into a lucrative commercial agreement with the State government to operate ITTC facilities throughout New South Wales. It can well bear its costs.

77 A costs order made against the Applicant will inevitably result in its winding up which will prevent its pursuit of an appeal.

78 The $40,000 that the Applicant was required to pay in response to Marist’s security for costs application is a very significant amount to the Applicant and its donors. If the Court exercises its discretion not to make a costs order against the Applicant, those funds should be released and returned to the Applicant.

79 This matter has been marked by two long periods of delay. The first occurred as a result of the first adjournment of the substantive hearing in August 2019. The second was Marist’s competency motion which is dealt with below in [81 ].

80 The first hearing was adjourned as a result of the Minister and Marist serving a REF days before the final hearing. The Applicant had incurred very significant legal costs by that time which exhausted its limited resources. The Applicant should not have to pay any of Marist’s costs because of the vacation of that hearing date.

81 On 17 December 2019 Marist pressed a motion to dismiss the proceedings as incompetent. The issue was decided against Marist on 30 June 2020 in Black Hill No 3. The Applicant was not legally represented in that period and does not therefore seek professional costs. Marist should not have any of its costs awarded in this period given that it was unsuccessful in having the proceedings dismissed.

82 In Black Hill No 1 Robson J set aside a notice to produce issued by the Applicant. Amendments to the terms of the notice to produce were required. Overall Marist was unsuccessful. Costs were reserved. The Applicant submits that a costs order should be made in its favour in relation to this notice of motion.

84 In Class 4 proceedings the usual rule is that costs follow the event. Marist has been successful in the substantive proceedings and in the absence of any disentitling conduct on its part would get its costs paid by the Applicant. No such conduct arises. The Applicant seeks to resist the usual rule by relying on LER r 4.2(1).

85 That proceedings were commenced by the Applicant as an incorporated association seeking to enforce the EPA Act is not determinative that the matter is one serving the public interest. Nor is the submission that the proceedings were commenced reasonably relevant to whether the matter is public interest in nature.

86 As set out in Caroona at [21]-[26], the wide scope of public interest means that it may well be served by different parties before the Court who can all be said to be acting in the public interest. Marist on behalf of the Minister wished to carry out an ITTC facility in Black Hill. The necessity for such facilities for young people was explored in Black Hill No 5. I accepted that the use of the property was to operate as a refuge providing temporary accommodation for vulnerable young people.

87 Factors that have been considered relevant to the identification of public interest litigation do not arise in relation to the Applicant in my view. The lay evidence read at the substantive hearing summarised in Black Hill No 5 at [18]-[22] solely identifies concerns of immediate neighbours concerning traffic, noise, safety concerns and privacy impacts. Their concerns were relatively narrow relating to the protection of perceived loss of amenity to some residents in Black Hill from an activity that can be squarely considered as serving the public interest. As identified in the Applicant’s submissions set out in [71 ] above its members were motivated in large part to ensuring that the objectives of the E4 zone were maintained as they lived in the zone.

88 Further, as Marist submitted in [55 ] above, the Applicant’s members claimed that the activity will have an impact on their private properties. The Applicant’s members therefore have an indirect pecuniary interest in the outcome of proceedings, a factor to be considered in determining whether the matter can be characterised as in the public interest: Caroona at [38(e)]; Engadine at [15]; Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.

89 In Black Hill No 3 at [158] where I did not accept that Black Hill Residents Group Incorporated was a vehicle for a small number of members engaged in a frolic of their own, the context was considering the actions of the managing committee in relation to the lawful commencement of proceedings. I do not consider that my finding there has any relevance to a finding on whether the proceedings are in the public interest. I agree with Marist’s submission above in [53 ] that the preliminary observations of Robson J in Black Hill No 1 were prescient. The Applicant was entitled to commence these proceedings. It cannot avoid the consequence of a costs order however by characterising itself as acting in the public interest under LER r 4.2(1). None of the factors identified in Caroona, Engadine, Millers or Local Democracy No 4 are able to support a finding of public interest.

90 This addresses the costs outcome for Black Hill No 5, the substantive proceedings, in relation to which Marist’s costs ought to be paid by the Applicant. That Marist was the successful party is also relevant to the determination of costs in a number of the interlocutory proceedings where costs were reserved.

91 Before considering these additional matters I observe that the award of costs is compensatory not punitive: Latoudis v Casey (1990) 170 CLR 535; [1990] HCA 59 at 543. That the Applicant is concerned that it will not be able to progress an appeal if it is wound up following the making of any costs order against it is not relevant to whether Marist should be compensated for its participation in these proceedings. That Marist has more resources than the Applicant, which the Applicant asserts, is also an irrelevant consideration.

92 In relation to the vacation of the first hearing which was to commence on 19 August 2019 given that the actions of the Minister resulted in that vacation no basis to require the Applicant to pay Marists’ costs thrown away exists. That is a matter best determined as between the two Respondents. No order for costs will be made in relation to that vacation.

93 I note that on 25 November 2020 I ordered the Applicant to pay Marist’s and the Minister’s costs of the mention held on 25 November 2020. That order stands.

94 Several other interlocutory applications require separate consideration in light of the parties’ submissions and the conduct of the proceedings as follows:

(1) Marist’s costs of the notice of motion dated 31 May 2019 (order that costs in the cause made 6 June 2019) should be paid by the Applicant given that Marist has been successful in the proceedings.

(2) Marist’s costs in Black Hill No 1 concerning amendments to a notice to produce should be paid by the Applicant. Marist was successful in having important amendments made to the Applicant’s notice to produce.

(3) Pursuant to order 6 made on 30 August 2019 Marist’s costs thrown away by amendments made to the Applicant’s further amended summons should be paid by the Applicant.

(4) In Black Hill No 2 the Applicant was ordered to provide security for the costs of Marist in the amount of $40,000. The Applicant should pay Marist’s costs of the notice of motion dated 4 September 2019 given that it was successful in obtaining an order for security for costs.

(5) Marist seeks its costs of its notice of motion dated 17 December 2019 challenging the competency of the proceedings. Marist was successful in obtaining findings that the proceedings were commenced incompetently by the Applicant, see Black Hill No 3. Remedial action by the Applicant’s managing committee could overcome that shortcoming and that course was taken. The motion was ultimately withdrawn. Given the outcome overall each party should pay its own costs of that notice of motion.

(6) In Black Hill No 4 the Applicant failed in its application to rely on a third further amended summons. Marist’s costs of that notice of motion dated 7 December 2020 should be paid by the Applicant.

95 Marist has been generally successful in seeking costs and should have its costs of this costs application paid by the Applicant.

96 An order will be made that the security for costs held by the Court be paid to Marist as its legal costs are likely to be greater than that sum.

(1) The Applicant must pay the First Respondent’s costs of the notice of motion dated 31 May 2019 as ordered 6 June 2019 as agreed or assessed.

(2) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited [2019] NSWLEC 112 (Black Hill No 1) as agreed or assessed.

(3) The Applicant must pay pursuant to order 6 made on 30 August 2019 the First Respondent’s costs thrown away by amendments made to the further amended summons filed 29 August 2019 as agreed or assessed.

(4) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (No 2) [2019] NSWLEC 137 as agreed or assessed.

(5) Each party to pay its own costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) [2020] NSWLEC 82 (Black Hill No 3).

(6) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 4) [2021] NSWLEC 11 as agreed or assessed.

(7) The Applicant must pay the First Respondent’s costs of Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist 180) (No 5) [2021] NSWLEC 43 as agreed or assessed.

(8) The Applicant must pay the First Respondent’s costs of this costs application as agreed or assessed.

(9) Pursuant to r 41.3 of the Uniform Civil Procedure Rules 2005 (NSW), the Registrar is to pay to the First Respondent’s solicitors Colin Biggers & Paisley out of Court the sum of $40,000.00, being the funds paid into Court by the Applicant as security for the First Respondent’s costs of the proceedings.

Land and Environment Court of New South Wales

Black Hill Residents Group Incorporated âe" INC1900196 v Marist Youth Care Limited (t/as Marist180) (No 6) [2021] NSWLEC 113 (20 October 2021)