Cumming v Minister for Planning [No 2] - [2020] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0013

HAMISH CUMMING	First Appellant
ADAM WALTON	Second Appellant
v
THE MINISTER FOR PLANNING [No 2]	First Respondent
WESTWIND ENERGY PTY LTD (ACN 109 132 201)	Second Respondent
KELLIE WALTON	Third Respondent

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JUDGES:	TATE, McLEISH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 231
JUDGMENT APPEALED FROM:	[2019] VSC 811 (Garde J)

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COSTS – Unsuccessful appeal – Planning permit for wind farm – Appellants’ motives included protection of endangered fauna – Whether departure from ordinary rule as to costs warranted – Whether departure warranted by public interest considerations – ‘Public interest litigation’ not a useful designation – Presence of public interest considerations does not compel costs result – Competing public interest considerations for Minister to resolve as part of permit process – Oshlack v Richmond River Council (1998) 193 CLR 72, considered – Whether departure warranted by impact of costs order on appellants – Impact on appellants alone insufficient to warrant departure – Northern Territory v Sangare (2019) 265 CLR 164, applied.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Appellants	D S T Legal
For the First Respondent	Ms C van Proctor	Victorian Government Solicitors’ Office
For the Second Respondent	Mr E Nekvapil	White & Case

TATE JA

McLEISH JA
OSBORN JA:

The Court, having granted leave to appeal, dismissed this appeal on 20 August 2020 and has now had the benefit of the parties’ submissions as to costs. These reasons should be read with the principal reasons of the Court.[1]
[1]Cumming v Minister for Planning [2020] VSCA 208.

Each of the successful respondents, namely the Minister for Planning (the first respondent) and the proponent of the wind farm development, WestWind Energy Pty Ltd (‘WestWind’) (the second respondent), seeks an order that the appellants pay their costs of the application for leave to appeal and of the appeal on the standard basis. (The third respondent took no part in the appeal.)

The appellants resist any costs order against them and submit that each party should bear their own costs, alternatively that the appellants’ liability for the respondents’ costs should be limited, or apportioned as to half, so that they are not burdened with two sets of costs.

The appellants submit that the case involved the public interest and that they succeeded in obtaining leave to appeal on four of their five grounds. They refer to the High Court’s decision in Oshlack v Richmond River Council,[2] and submit that, similarly to the appellant in that case, the appellants have served the public interest and were motivated by a desire to preserve the habitat of the endangered Brolga, a native Australian crane, and obedience to environmental law. They say further that WestWind had submitted development plans in May 2020 that were inconsistent with the conditions of the planning permit, and that the Minister had made mistakes when he granted that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSCA 231
Decision Date: 9 September 2020

CaseChat Overview and Summary

The case of Cumming v Minister for Planning [No 2] involved the appellants, who were residents and environmental activists, challenging the decision of the Minister for Planning to grant a planning permit for a wind farm. The dispute centred on the merits of the Minister's decision and the associated costs. The case was heard by the High Court of Australia. The appellants argued that the Minister had failed to properly consider the impact of the wind farm on endangered fauna and that the decision was therefore unlawful. They sought a departure from the ordinary rule regarding costs, arguing that the public interest considerations warranted such a departure.

The legal issues before the court included whether the public interest considerations involved in the dispute warranted a departure from the usual rule on costs and whether the impact of the costs order on the appellants alone was sufficient to justify such a departure. The court examined the principles established in Oshlack v Richmond River Council and Northern Territory v Sangare to determine the appropriate course of action. The court considered whether the public interest litigation designation was relevant and whether the presence of public interest considerations necessarily compelled a particular costs result. The court also assessed the competing public interest considerations that the Minister was required to resolve as part of the permit process.

The High Court held that the public interest considerations involved in the case did not compel a departure from the ordinary rule on costs. The court emphasised that the presence of public interest considerations did not automatically warrant a specific costs result, and that such considerations were part of the decision-making process that the Minister had already undertaken. The court applied the principles from Northern Territory v Sangare to conclude that the impact of the costs order on the appellants alone was insufficient to warrant a departure from the usual rule. The court therefore dismissed the appeal and upheld the decision of the lower court regarding costs.

Orders