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

1. 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.

1. 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

1. 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.

1. 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

1. 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 challenge the validity of the permit and corrections;

(b)      the case was readily distinguished from Oshlack, as:

(i)it could not be said that the plaintiffs had nothing to gain from the litigation. The second and third plaintiffs stood to benefit from the litigation as they lived and worked on adjoining land in close proximity to the project;

(ii)there was no evidence that a significant number of members of the public shared the plaintiffs’ position; and

(iii)there were no significant issues of statutory interpretation or administration or unsettled principles of law raised in the proceeding.

(c)there was no evidence to support the view that the Minister would not have been aware of the need to correct the permit but for the commencement of the proceeding;

(d)the Minister did not act unreasonably in the course of defending the proceedings; and

(e)the Minister does not share common interests with WestWind, and it would not be appropriate for the Minister to share legal representation with WestWind.

WestWind’s submissions

1. WestWind submitted that:

(a)as the plaintiffs were entirely unsuccessful, they should be ordered to pay WestWind’s costs on the standard basis;

(b)WestWind was served with the proceeding as an interested party, and joined by consent as a party to the proceeding. It had a direct interest in the project, and wholly owned the shares in the trustee responsible for the project;

(c)there was a conflict of interest between the Minister as decision maker and of WestWind as proponent.  Once granted, a permit is subject to further statutory oversight by the Minister and other public authorities. This was illustrated by the different positions adopted by the Minister and WestWind as to the validity of the condition restricting the rotor diameter to 150m; and

(d)WestWind’s participation in the proceeding did not delay the litigation.

1. WestWind also submitted that:

(a)it was inaccurate to characterise the proceeding as a public interest proceeding because of the potential effects of the project on the Brolga.  It equally raised the public interest of permitting an authorised, significant renewable energy project to proceed with all expedition. The public interest was not advanced by an unmeritorious application for judicial review;

(b)there was no evidence of any widespread public support for the plaintiffs’ case with 19 objections to the Environment Effects Statement and 12 to the permit application;

(c)the proceeding did not raise especially novel or significant legal issues; and

(d)the second and third plaintiffs were primarily motivated by private interests.

Relevant principles

1. The Court has a broad discretionary power to make orders as to costs.[3]  The Court’s discretion is unfettered but is exercised judicially upon facts connected with the litigation and not by reference to irrelevant or extraneous considerations.[4] 

   [3]Supreme Court Act 1986 (Vic) s 24; Civil Procedure Act 2010 (Vic) s 65C.

   [4]Latoudis v Casey (1990) 170 CLR 534, 557 (Dawson J); Oshlack (n 2) 86 [34] (Gaudron and Gummow JJ).

1. Although costs are in the discretion of the Court, the ordinary rule is that, in the absence of sound reasons to the contrary, a successful litigant should receive his or her costs.[5]  The purpose of an order for costs is to compensate the successful party, and not to punish the unsuccessful party.[6]

   [5]Milne v Attorney-General for the State of Tasmania (1956) 95 CLR 460, 477 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ).

   [6]Latoudis v Casey (n 4) 563 (Toohey J), 567 (McHugh J).

1. In Oshlack, McHugh J explained that the principle that a successful party in litigation is entitled to an award of costs is grounded in reasons of fairness and policy. If the litigation had not been brought or defended by the unsuccessful party, the successful party would not have incurred the expense which it did.[7]

   [7]Oshlack (n 2) 97 [67].

1. The High Court has recently  made it clear that the financial position of a party is not a relevant consideration to the exercise of the Court’s discretion.[8]

   [8]Northern Territory v Sangare (2019) 93 ALJR 959 (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).

1. In Johnston v The Greens NSW (No 2), Robb J observed that some care must be taken in interpreting Oshlack.[9] The issue in Oshlack was not whether the litigation should be characterised as public interest litigation but whether the Court of Appeal was right to overturn the primary judge’s decision as to costs on the basis that the reasons given by the primary judge were extraneous to the objects of the legislation.[10]

   [9][2020] NSWSC 10, [27].

   [10]Oshlack (n 2) [31] (Gaudron and Gummow JJ).

1. In Spear v Hallenstein (No 2), Niall JA observed that Oshlack did not stand for the proposition that the presence of some public interest, broader than the interest of the individual party bringing the proceeding, justified departure from the usual rule.[11]

   [11][2018] VSC 207, [10].

1. The difficulty in singling out individual public interest considerations in planning cases in Victoria is manifest.  In Boroondara City Council v 1045 Burke Road Pty Ltd, Warren CJ said:

There cannot be any doubt that Victorian planning law requires integrated strategic decision-making. The Act and its history demonstrate that one of the objectives of planning in Victoria is to facilitate development in accordance with the other objectives, including, but not limited to, conservation of buildings which are of aesthetic, historical or cultural interest.   Significantly, one of the objectives of planning under the Act is to enable land use and development planning and policy to be ‘easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels.’ Further, ss 60 and 84B of the Act require consideration of a wide range of matters in a planning permit application, including the environmental effects and social and economic effects of the proposal, where appropriate.[12]

[12](2015) 49 VR 535, 545 [30].

1. In Knox City Council v Tulcany Pty Ltd, Osborn J held:

The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits.[13]

[13][2004] VSC 375, [13(e)].

1. As the passages make clear, public interest considerations abound in planning decision making, and not infrequently conflict.  It is a matter for the decision maker to determine the net community benefit after having taken all relevant considerations into account.  The Court is in no position to evaluate the respective weight to be given to the plaintiffs’ concern for the Brolga, as against WestWind’s interest in promoting the establishment and expansion of renewable energy facilities. 

1. Review of the panel report in this proceeding shows that there were multiple public interest considerations taken into account including planning, health, heritage, and environmental considerations, of which the proper protection of Brolga was one.  Each consideration was given the weight considered appropriate by the panel and the Minister.

1. It is the Minister who has the task of determining where the net community benefit lies after reviewing the panel report, and considering the different concerns and interests advocated by the proponent and objectors.

Decision

1. I reject the submission by the plaintiffs that the proceeding should be characterised as a public interest proceeding, and that they should not be ordered to pay costs for the following reasons:

(a)it was the Minister’s statutory task to determine whether the proposal had a net community benefit and should be approved;

(b)the Minister’s decision took into account a wide range of considerations including the need to protect the Brolga;

(c)the object of the proceeding was to determine the legality of what the Minister had done, and was unsuccessful;

(d)the plaintiffs had previously had a full opportunity to present their cases to the panel appointed by the Minister;

(e)two of the three plaintiffs lived on a property which adjoined the proposed wind farm.  Their interest was predominantly a private interest;

(f)there was not a high level of public interest in the proposal, or in the panel’s decision; and

(g)there was no improper or unreasonable conduct by any party.

1. I also reject the plaintiffs’ submission that the Minister and WestWind should have had single representation.  The interests of the Minister as statutory decision maker and that of WestWind as development proponent plainly conflict.  The Minister’s duty is to act as an independent decision maker and uphold the integrity of the decision making process under the Planning and Environment Act 1987 (Vic). The interest of WestWind as proponent of the project is to advocate for the project and obtain the necessary permissions. It is plain that the Minister and WestWind cannot be represented by the same legal advisers.

1. WestWind was a necessary and proper party to the proceeding. It was entirely proper for it to defend the permit that it had obtained. WestWind provided evidence on affidavit and made submissions to the Court. The Court was assisted by its submissions.  There is no merit in the plaintiffs’ submission that WestWind should not be awarded its costs of the proceeding.

Conclusion

1. I will order that the defendants’ costs be taxed on the standard basis by the Costs Court and when taxed paid by the plaintiffs.

SCHEDULE OF PARTIES

HAMMISH CUMMING	First plaintiff
ADAM WALTON	Second plaintiff
KELLIE WALTON	Third plaintiff
THE MINISTER FOR PLANNING	First defendant
WESTWIND ENERGY PTY LTD (ACN 109 132 201)	Second defendant