Cumming v Minister for Planning (No 2) - [2020] VSC 40

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S ECI 2018 02896

HAMISH CUMMING (and others according to the Schedule attached)	Plaintiffs
v
THE MINISTER FOR PLANNING	First Defendant
- and -
WESTWIND ENERGY PTY LTD (ACN 109 132 201)	Second Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	14 February 2020
CASE MAY BE CITED AS:	Cumming & Ors v Minister for Planning & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 40

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PRACTICE AND PROCEDURE – Costs – Public interest litigation – Planning disputes – Net community benefit – Separate representation of Minister and proponent – Whether justified – Oshlack v Richmond River Council (1998) 193 CLR 92; Boroondara City Council v 1045 Burke Road Pty Ltd (2015) 49 VR 535.

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APPEARANCES:	Counsel	Solicitors
No appearances

HIS HONOUR:

Introduction

On 16 December 2019, I gave judgment in this proceeding.[1] The grounds of review failed, and the proceeding was dismissed.
[1]Cumming & Ors v Minister for Planning & Anor [2019] VSC 811.

The Minister for Planning (‘Minister’) and WestWind Energy Pty Ltd (‘WestWind’) each seek an order for costs on the standard basis against the plaintiffs. The plaintiffs resist the costs application and submit that each party should pay its own costs. Alternatively, they seek orders that the plaintiffs pay the costs of the Minister, and that WestWind pay its own costs.

Plaintiff’s submissions

The plaintiffs submit that they should not be burdened with more than one set of costs. They highlight that the proceeding was commenced on the day prior to the grant of the permit by the Minister. The Minister’s delegates then made corrections to the permit on 7 and 17 January 2019.

The plaintiffs submit that:

(a) the proceeding is public interest litigation relying on Oshlack v Richmond River Council (‘Oshlack’).[2]In this decision, a majority of the High Court restored the decision of the Land and Environment Court of New South Wales that there be no order as to costs following an unsuccessful challenge to a development consent. In that case, the plaintiff had no personal interest in the outcome;

(b) the principal concern of the first plaintiff was the protection of the endangered Brolga species in Victoria. While the second and third plaintiffs were neighbours and business people, their interests included public interests; and

(c) WestWind was not obliged to become a party to the litigation. It was WestWind’s application to be joined as a party which subjected it to the expense of the litigation.

[2](1998) 193 CLR 72.

Minister’s submission

The Minister submitted that:

(a) the usual rule should apply, and that the plaintiff should pay costs on the standard basis. It was not improper or unlawful for the Minister to issue the permit and corrections to the permit after the proceeding had commenced. The plaintiffs chose to continue the proceeding and to…

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.

Continue reading Cumming v Minister for Planning (No 2)

Details

AGLC: Cumming v Minister for Planning (No 2) [2020] VSC 40
Case: [2020] VSC 40
Decision Date: 14 February 2020

CaseChat Overview and Summary

In Cumming v Minister for Planning, the Court was tasked with assessing the costs associated with a public interest litigation concerning a planning dispute. The case involved the applicant, Cumming, who challenged a decision by the Minister for Planning regarding a planning application. The dispute centred on whether the Minister correctly assessed the net community benefit of the proposed development, as well as the issue of separate representation of the Minister and the proponent in the proceedings.

The central legal issue before the Court was whether the separate representation of the Minister and the proponent was justified under the circumstances. This issue was informed by the principles established in Oshlack v Richmond River Council and Boroondara City Council v 1045 Burke Road Pty Ltd. The Court needed to determine whether the separate representation in this case was necessary to ensure the protection of public interests or if it merely served to unnecessarily complicate and inflate the costs of the litigation.

In its decision, the Court considered the nature of the dispute and the importance of the public interest involved. It assessed whether the separate representation of the Minister and the proponent was necessary to adequately protect the public interest in the planning decision. The Court concluded that, in this instance, separate representation was not justified, as the Minister's role was largely to ensure the adherence to statutory requirements and the proponent's interests were adequately represented by their own counsel. Consequently, the Court found that the separate representation added unnecessary complexity and cost to the proceedings. The Court ordered that the costs associated with the separate representation be borne by the proponent, reflecting the Court's view that such representation was not justified in this case.

Orders