A community group’s failed Supreme Court challenge against listed developer Australand and the State Government has raised questions about actions taken by incorporated associations against state government agencies.
The appeal, by the Coogee Coastal Action Coalition (CCAC) was unanimously dismissed, allowing for development to commence on a $500 million marina at Port Coogee.
Early last week the Court of Appeal heard claims that the planning process was flawed due to bias and that common law rights to access would be infringed by the development.
Australand general manager WA, Chris Lewis, said the project’s merits had been thoroughly tested.
While acknowledging that the case included questions of common law rights and loss of access, and therefore may have appeared primarily to be a planning challenge, Mr Lewis said the CCAC was also questioning the integrity of those responsible for making the planning decisions.
“They were suggesting that these professional committed people, including the minister, members of the hearing committee and planning staff, were biased in their decision making because we had a contractual arrangement to purchase the land from the Western Australian Planning Commission,” he said. “The integrity of such people was vindicated by the fact these outlandish claims were comprehensively dismissed.”
The development proposes the creation of a 303-pen marina, more than 950 dwellings, a 200-metre beach and a commercial area. Construction is expected to commence later this year.
The CCAC campaigned against the development for three years, and the loss raises the issue of how community-based incorporated associations can cover the costs and losses arising through unsuccessful lengthy litigation.
Justice Wheeler suggested the need for a review of parties that are able to bring such actions, saying it was inevitably taxpayers who footed the bill when the associations could not pay.
“The practical reality of conferring standing upon an associated incorporation … is that in the event of its action being unsuccessful, the associated incorporation is most unlikely to have funds available to satisfy any order for costs,” Justice Wheeler said. “Because of the separate legal personality of that association, the individual members, whose interests and concerns have given rise to the action, will not be at risk of costs.
“The end result would be, in a case such as the present that the whole body of taxpayers of Western Australia, who may or may not share the concerns of the members of the applicant, will meet the costs of the respondent.”
Phillips Fox property partner Paul McQueen said the case highlighted the implications of an incorporated association taking action against state government agencies.
“On the one hand of course you want the community to have the ability to challenge things, but if they lose, they can’t pay costs and the individuals are personally shielded, and taxpayers foot the government’s bill and private industry foot their own bill,” Mr McQueen said.”