Land and Environment Court New South Wales Medium Neutral Citation: David Goode v Gwydir Shire Council (No 2) [2020] NSWLEC 118 Hearing dates: Written submissions 10 June 2020, 25 June 2020 Date of orders: 20 August 2020 Decision date: 20 August 2020 Jurisdiction: Class 4 Before: Pain J Decision: The Applicant is to pay the Respondent's costs in these proceedings as agreed or assessed. Catchwords: COSTS – unsuccessful applicant in judicial review challenge to development consent for truck wash facility where local council the proponent opposes costs order in favour of successful respondent council – whether public interest litigation Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3 cl 32 Environmental Planning and Assessment Act 1979 (NSW) s 4.10 Land and Environment Court Rules 2007 (NSW) r 4.2 Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Botany Bay Council v Minister for Local Government (No 2) [2016] NSWCA 127 Caroona Coal Action Group Ltd v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 David Goode v Gwydir Shire Council [2020] NSWLEC 33 Goode v Gwydir Shire Council [2019] NSWLEC 70 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39 Kennedy v NSW Minister for Planning [2010] NSWLEC 269 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 People for the Plains Incorporated v Santos (NSW) Eastern Pty Ltd (No 2) [2017] NSWCA 157 Category: Costs Parties: David Goode (Applicant) Gwydir Shire Council (Respondent) Representation: COUNSEL: D Goode (in person) (Applicant) J Ede (solicitor) (Respondent) SOLICITORS: N/A (Applicant) Wilshire Webb (Respondent) File Number(s): 19/183535 Judgment 1. The Applicant Mr Goode was unsuccessful in Class 4 judicial review proceedings alleging errors or shortcomings in Gwydir Shire Council's (the Council) determination to grant development consent to Development Application No 10.2018.13.1 (the DA) for a truck wash facility in Warialda (see David Goode v Gwydir Shire Council [2020] NSWLEC 33 (Goode No 1)). The Council is the proponent for the truck wash facility as well as the consent authority under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). 2. The grounds of judicial review raised in Goode No 1 were: (i) inadequate consideration of impacts and suitability of the site by the Council; and (ii) failure of the Council to process the DA as designated development. Mr Goode was unsuccessful on the first ground as the matters he identified were relevant only to a merits assessment of the truck wash facility (at [72]). Mr Goode was unsuccessful on the second ground as he failed to establish that the truck wash facility fell within cl 32 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) and was designated development for the purpose of s 4.10 of the EPA Act. Mr Goode alleged that the truck wash facility was a waste management facility to which cl 32(1)(a)(iii) of Sch 3 of the EPA Regulation applied. The dominant purpose of the truck wash facility was not waste management. Even if established that the truck wash facility was for waste management purposes, it was not demonstrated by Mr Goode that the threshold in cl 32(1)(iii) of the amount of effluent applied (at [95]-[96]). The amended summons was dismissed and costs were reserved. 3. The Council is claiming that Mr Goode should pay its costs of the proceedings as agreed or assessed. Mr Goode is claiming that a costs order should not be made against him as the proceedings were brought in the public interest, relying on r 4.2 of the Land and Environment Court Rules 2007 (NSW) (LECR). Mr Goode represented himself at the substantive hearing and in relation to this costs application. 4. An affidavit of Mr Goode sworn 18 May 2020 was received by email via Mr Ede, solicitor for the Council, on 28 May 2020. The Council filed submissions on costs on 10 June 2020. On 25 June 2020 Mr Goode filed a bundle of documents consisting of his 18 May 2020 affidavit and additional pages titled "COSTS Application", understood to be submissions on costs. Legislation Civil Procedure Act 2005 (NSW) 1. Section 98 of the Civil Procedure Act 2005 (NSW) provides: Division 2 Costs in proceedings 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act— (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. … Uniform Civil Procedure Rules 2005 (NSW) 1. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides: Part 42 Costs Division 1 Entitlement to costs 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. Land and Environment Court Rules 2007 (NSW) 1. LECR r 4.2 provides: Part 4 Proceedings in Class 4 of the Court's jurisdiction … 4.2 Proceedings brought in the public interest (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest. … Evidence Mr Goode's affidavit of 18 May 2020 1. Mr Goode swore an affidavit on 18 May 2020. Annexed to the affidavit were an article from The Gwydir News dated 13 May 2020 titled "Warialda's Truck Wash Another Step Closer" and two photographs of the truck wash facility. 2. Mr Goode deposed that he was relying on LECR r 4.2 as the proceedings were brought in the public interest. Mr Goode said he is a disability pensioner living from pension payments alone. He lives five kilometres away from the truck wash facility and does not own any adjoining land or have any other connection to the truck wash facility other than driving past it on his way to and from town. 3. Mr Goode described several of his ongoing concerns about the construction and operation of the truck wash facility including: 1. Other truck wash facilities Mr Goode had visited were located out of public view, whereas the truck wash facility in Warialda will wash manure towards passing traffic and the stained ramp will be visible all the time. 2. The sludge pit area of the truck wash facility allows for tons of manure to sit for weeks or more. The Council has incorrectly claimed this is organic manure that can be sold. The people of Warialda will not be protected from the possible concerns resulting from the manure. 3. There is no fence around the perimeter of the truck wash facility which poses a risk to the town and youth playing in the area. 4. The volume of water used at the truck wash facility may cause blockages for the town's sewerage treatment plant (STP). 5. The truck wash facility will not prevent trucks driving through the town unwashed. The route trucks will take does not bypass the town, only the central business district area of Warialda. 6. Contrary to the standpoint of Mr Max Eastcott, the Council's general manager (General Manager) that work commenced after 23 January 2019, work commenced in mid-to-late August 2018 (I note this was not an issue raised at the substantive hearing and cannot be relevant to this costs application). 7. The "waste industrial water licence" obtained by the Council was only applied for at the last minute because of the issues Mr Goode raised. The licence restricted the hours of operation of the truck wash facility to 11 hours per day, however a recent newspaper story reported that it would be open 24 hours per day (I note this was not an issue raised at the substantive hearing and cannot be relevant to this costs application). 8. Photographs from the Council's website show how the trucks can be seen from the road by passing traffic. After months of use the ramps will become stained. 1. Mr Goode deposed to the impact of the coronavirus pandemic on his presentation to the Court during the hearing. Mr Goode said he was very concerned about the escalating pandemic and the risk to his health created by travelling to and from the Court from Warialda. Mr Goode said that the General Manager sat behind him coughing whilst Mr Goode was presenting to the Court which caused Mr Goode to prematurely withdraw from giving further evidence. 2. Concerning costs, Mr Goode deposed that he spent over $5,000 of his own money and asked the Court to consider ordering the Council to pay its own costs. Mr Goode said he has been trying to show how bad the truck wash facility will be, in particular that members of the public and residents of Warialda will view the facility when approaching the town. Council's objections to Mr Goode's affidavit 1. The Council submitted that Mr Goode's affidavit predominantly sought to re-open issues the subject of the substantive proceedings rather than dealing with the issue of costs and that a significant portion of the affidavit contained submissions based on opinion without evidentiary basis. 2. Mr Goode said he is a disability pensioner. The Council submitted that Mr Goode did not provide sufficient information to determine his inability to meet a costs order and in any event this would be an insufficient reason to deprive a successful party of its costs: Kennedy v NSW Minister for Planning [2010] NSWLEC 269 (Kennedy) at [17]. Further, lack of pecuniary interest in the approved development does not automatically mean litigation has been brought in the public interest. 3. Mr Goode's concerns about the visual impact of the truck wash facility on the public, restrictions on hours of operation and the impact of the coronavirus (summarised in [10]-[11] above) were largely the subject of the substantive proceedings and are not relevant to the determination of the issue of costs. 4. Mr Goode claimed evidence provided by the General Manager was false, being that summarised above in [10(f)]. I note that the General Manager affirmed two affidavits dated 11 October 2019 and 13 March 2020 that were read at the substantive hearing. The Council objected to Mr Goode's assertion and noted that the evidence was read without objection and was not tested by Mr Goode during the substantive hearing. I agree and do not have regard to that assertion here. Submissions Council's submissions 1. The Council submitted that Mr Goode should pay the Council's costs of the substantive proceedings as agreed or assessed. The Court should not be satisfied that the proceedings were brought in the public interest under LECR r 4.2 and in any event should not exercise its discretion to depart from the general rule that costs follow the event. Litigants espousing the public interest are not granted an indemnity for costs or a "free kick" in litigation: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack) at [134]. There is no blanket exception from the usual rule as to costs for public interest litigation: Botany Bay Council v Minister for Local Government (No 2) [2016] NSWCA 127 at [6]-[7]. The courts must be very careful to see that the concept of public interest litigation does not become an umbrella for the exercise of discretion as to costs in an unprincipled, haphazard and unjudicial manner: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157; [2010] NSWCA 39 at [48]. The relevant principles guiding whether litigation is in the public interest are summarised in People for the Plains Incorporated v Santos (NSW) Eastern Pty Ltd (No 2) [2017] NSWCA 157 (Santos) at [5] and Caroona Coal Action Group Ltd v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 (Caroona Coal) at [38] and [60]-[61]. Mr Goode's proceedings were not in the public interest 1. In this case, the facts demonstrate that the proceedings were not in the public interest. Mr Goode has led no evidence in support of his public interest claims and instead seeks to rely entirely on the character of the proceedings. Using the considerations of Preston CJ in Caroona Coal at [38], which provide some guidance in relation to whether the proceedings may properly be characterised as public interest proceedings, the Council submitted that: 1. The proceedings concerned the construction and use of a truck wash facility. Properly understood, the gravamen of the proceedings was whether the Council had adequately considered various relevant matters and whether the development should have been processed as designated development. This matter alone is not determinative of the public interest. 2. The DA subject of the proceedings was notified from 19 April 2018 to 16 May 2018. Mr Goode was the only person that lodged a submission with respect to the proposal. This is indicative that there was not a wider public interest in the proposal and the interest subject of the proceedings was confined to Mr Goode. This was a largely uncontroversial project with support from local and state authorities. 3. Mr Goode's proceedings largely sought to challenge the merits of the Council's decision as opposed to raising proper grounds for judicial review. The grounds of judicial review that were raised were largely misconstrued due to Mr Goode's misunderstanding of the law. 4. Mr Goode has not demonstrated that the prime motivation of the litigation was to uphold the public interest and the rule of law. 5. The Council is not aware of any pecuniary interest Mr Goode has in respect of the approved development. 1. For these reasons, notwithstanding the nature of the proceedings and Mr Goode's apparent lack of any pecuniary interest in the proposal, the Court could find that the proceedings were not in the public interest. Mr Goode's proceedings did not involve "something more" 1. Even if the Court determines that the proceedings may be correctly characterised as public interest litigation, courts will generally require "something more" than this mere characterisation to justify a departure from the general rule: Santos at [40]. Using the considerations of Preston CJ in Caroona Coal at [60], which provide some guidance in relation to whether the proceedings may involve "something more", the Council submitted that: 1. The proceedings did not involve any novel issues of general importance. Mr Goode sought to raise grounds of review in respect of failure to properly consider relevant matters and failure to process the DA as designated development. He did not raise any matters of general importance in respect of alleged failure to properly consider relevant matters and misinterpreted the legislative regime in respect of designated development. The litigation added nothing more to an understanding of these matters. 2. Mr Goode has not purported to bring these proceedings to protect the environment or some component of it. 3. Mr Goode was the only person that raised concerns with respect to the approved development during the assessment process. There is no evidence of a significant section of the public impacted by the litigation. 4. The Council is not aware of any pecuniary interest Mr Goode has in respect of the approved development. The countervailing circumstances 1. Even if the Court characterises the proceedings as public interest litigation, certain circumstances weigh against departing from the general rule as to costs. The issues raised in the proceedings were far from a "test case": Oshlack at [137]. Rather, the points of law raised were particular to the decision-making process in the factual circumstances of this case and did not raise any questions that have broad ramifications for the development of environmental and planning law. Additionally, Mr Goode was aware of the potential costs consequences of bringing judicial review proceedings in Class 4 of the Court's jurisdiction and elected to bring the proceedings in any event. In Goode v Gwydir Shire Council [2019] NSWLEC 70, concerning earlier proceedings commenced by Mr Goode in the incorrect class of the Court's jurisdiction, Pepper J explained Mr Goode's right to seek judicial review and the consequences of same including at [30] that "in Class 4 proceedings costs usually follow the event, and therefore, Mr Goode would be at risk of an adverse costs order" and at [31] that "costs are likely to follow the event if he is unsuccessful". Mr Goode's submissions 1. In relation to the first step in Caroona Coal (the public interest served by the litigation) Mr Goode submitted firstly, regarding the sight, view and amenity of the truck wash facility, that the site of the truck wash facility is exposed to public view. A tree screen planted to block the truck wash facility from public view has left much of it exposed to the Gwydir Highway. The truck wash facility is in a location that should not have been chosen by the Council. Secondly, the truck wash facility is close to homes and the noise from the trucks will carry across the town of Warialda. Thirdly, the truck wash facility creates a biosecurity risk as trucks will leak effluent along the road. This will impact not only Warialda but northern NSW and other states as the cattle move across borders. Mr Goode submitted that the impact on the STP would prove to be much greater than what had been estimated by the Council which creates risks for the creek system and poses a health risk to members of the community. Mr Goode also submitted that the volume of manure to be left sitting at the truck wash facility would create concern for the health of nearby homeowners and council workers. I note that Mr Goode stated that some of these issues are new and were not raised at the original hearing (namely noise arising from the use of the facility, greater biosecurity risk and volume of water to be treated at the STP). Information not presented to the Court at the substantive hearing cannot be relevant now. 2. Mr Goode said his prime motivation for commencing proceedings was the public interest and he had no personal, private or pecuniary interest in the litigation. 3. In relation to the second step in Caroona Coal (something more), Mr Goode submitted that the DA should have been considered by a neighbouring council without an interest in the outcome of its determination. 4. In relation to the third step in Caroona Coal (countervailing circumstances), Mr Goode submitted that he did not have any rights of a commercial character from which to benefit, was not part of an incorporated association and had received no financial support in bringing his case. Mr Goode reiterated his concerns as to the biosecurity and health risks posed by the truck wash facility. Had he been able to afford a lawyer Mr Goode submitted he would have paid for one to assist with his case. 5. The submissions include a page stating "sections of my case not presented" because of coughing by the General Manager during the hearing which caused Mr Goode not to present verbal evidence about water usage rates. 6. Attached to Mr Goode's submissions were several photographs of the truck wash facility from the Council's website. Mr Goode submitted that these photographs demonstrate his points about the visual amenity impacts of the truck wash facility on the public as the site is highly exposed to public view. Consideration 1. I agree with and adopt the summary of relevant principles concerning costs identified by the Council set out in [17] above. In Santos, the Court of Appeal summarised at [5] the following three-step test for determining whether to depart from the general rule: 1. whether the litigation is properly to be characterised as "public interest litigation"; 2. whether, if it is, there is "something more" than such a characterisation to warrant departure from the general rule; and 3. whether there are any relevant countervailing circumstances. 1. In Caroona Coal, Preston CJ usefully summarised the (non-exhaustive) factors courts have considered in applying each step of this test. In relation to the first step, Preston CJ at [38] noted five considerations: 1. the public interest served by the litigation; 2. whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity, or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area; 3. whether the applicant sought to enforce public law obligations; 4. whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and 5. whether the applicant has any pecuniary interest in the outcome of the proceedings. 1. In relation to the second step, Preston CJ at [60] observed that courts have considered the following factors to be "something more": 1. the litigation raises one or more novel issues of general importance; 2. the litigation has contributed, in a material way, to the proper understanding, development or administration of the law; 3. where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance; 4. the litigation affects a significant section of the public; and 5. there was no financial gain for the applicant in bringing the proceedings. 1. In relation to the third step, Preston CJ at [61] observed that courts have found the following factors to be countervailing circumstances: 1. the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation; 2. where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation; 3. the applicant is supported financially by persons or bodies who would benefit from, or would have 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 pursues or persists with points which have no merit or issues that were not eminently arguable; and 6. there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation. 1. I will apply the principles in Caroona Coal identified above in [29]-[31] in the context of LECR r 4.2. My finding in Goode No 1 was that Mr Goode essentially identified merit review grounds more suited to a Class 1 merit appeal than judicial review grounds identifying errors of law on the Council's part in approving the truck wash facility which the Council will operate. The designated development ground was also unsuccessful as Mr Goode failed to establish that the truck wash facility was a waste management facility for the purpose of cl 32 of Sch 3 of the EPA Regulation. 2. As to the evidence relied on by Mr Goode for this costs application summarised above in [8]-[12], I agree with the Council's objections set out in [13]-[14] above that the affidavit contains assertions of opinion unsupported by evidence and is largely irrelevant to a determination of costs in that issues raised at the substantive proceedings are again identified. I have already stated in [16] above that I do not accept Mr Goode's assertions that work on the truck wash facility commenced earlier than the General Manager said it did (in [10(f)] above) for the reasons given by the Council in [16] above. 3. As to whether the proceedings have been brought in the public interest, Mr Goode asserts that they are because: (a) he is seeking to protect the amenity of the eastern highway entry to Warialda from what he considers will be unsightly activity of dumping manure and truck washing which will be on view to the public because of the way the facility has been sited; (b) he is concerned about the potential overloading of the Warialda STP; (c) he is concerned about the biosecurity risks posed by the project; and (d) he is concerned about large amounts of manure which he believes will be sitting on-site, posing threats to home owners and council workers. I accept that Mr Goode thinks he is acting in the public interest and has no pecuniary interest in the outcome of the proceedings. While not determinative, a matter identified in Caroona Coal at [38(b)] is whether the interest at stake is held widely in the community or arises from a small group. Mr Goode appears to have no supporters for his views in that no person or group has filed evidence supporting his case and nor has he filed evidence to demonstrate such support. According to the Council's submissions, albeit with no supporting evidence, no one apart from Mr Goode objected to the DA for the truck wash facility during the public notification process. 4. During the substantive hearing, Mr Goode tendered a Transport for NSW document titled "Fixing Country Truck Washes Program Overview" which described a NSW and Commonwealth Government grant program to co-fund truck wash upgrades. One of the criteria for the grant was that applicants demonstrate how a project would have a positive impact on biosecurity and the environment. As deposed to by the General Manager in his affidavit dated 11 October 2019, the truck wash facility at Warialda was supported by this grant program with the Council securing $364,900 in funding from the NSW Government for the project. This suggests that the facility is in the public interest. It is therefore debateable that these proceedings can be characterised as public interest in nature no matter how well-intentioned Mr Goode is. 5. Turning to the second factor identified in Caroona Coal at [60], I agree with the Council that the litigation did not contribute "something more". I found that the failure to consider ground was not available in judicial review proceedings and that the truck wash facility was not designated development as the second ground alleged. It must follow that the litigation did not therefore raise any novel issue of general importance, did not contribute to the development or understanding of administrative law, did not obviously affect a significant section of the public or protect a component of the environment of significance. I do not consider Mr Goode's submission that another council should have considered the DA is relevant to any costs determination. 6. I do not agree with the Council that a countervailing circumstance is that Mr Goode persisted with litigation despite being aware that if he lost he would be likely to be ordered to pay costs, as identified by Pepper J. I accept that Mr Goode has done his best in the absence of engaging a lawyer but unfortunately that has caused the Council to incur the costs of the entirely unsuccessful litigation. 7. No concern was raised during the hearing by Mr Goode about coughing by the Council's representative and I was unaware of the impact this had on his case presentation. Given the nature of the additional information identified in his affidavit and costs submissions in this context, if it had been presented my conclusion that merit matters were being raised is likely to have followed. 8. As the Council submitted, Mr Goode's financial position as a pensioner is not a basis for denying the Council the benefit of a costs order in its favour, as referred to in Kennedy at [17]. 9. In the exercise of my discretion, costs should follow the event, being that the Council successfully defended these judicial review proceedings. Mr Goode has not demonstrated any basis for not applying the usual costs rule. As the Council stated citing Kennedy, Mr Goode's lack of financial resources is not a basis for not making a costs order. A costs order that costs are to be paid as agreed or assessed will be made. I would encourage Mr Goode to negotiate terms of payment such as by instalments with the Council if at all possible. Orders 1. The Court orders: 1. The Applicant is to pay the Respondent's costs in these proceedings as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2020