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

Land and Environment Court New South Wales

Medium Neutral Citation: Black Hill Residents Group Incorporated – INC1900196 v Marist Youth Care Limited (t/as Marist180) (No 6) [2021] NSWLEC 113 Hearing dates: 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)