Gray v Minister for Planning (No 2) - [2007] NSWLEC 91

Land and Environment Court

of New South Wales

CITATION: Gray v Minister for Planning & Ors (No 2) [2007] NSWLEC 91

PARTIES: APPLICANT
Peter Gray
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
Director-Genral of the Department of Planning
THIRD RESPONDENT
Centennial Hunter Pty Ltd

FILE NUMBER(S): 40870 of 2006

CORAM: Pain J

KEY ISSUES: Costs :- exercise of discretion to award costs in contested Class 4 proceedings

LEGISLATION CITED: Land and Environment Court Act 1979 s 69(2)

CASES CITED: Armstrong v Landmark Corporation Ltd [1967] 1 NSWR 13;
Cutcliffe v Lithgow City Council [2006] NSWLEC 463;
GPT Re Ltd v Wollongong City Council [2006] NSWLEC 658;
Farah v Warringah Council and Ors [2006] NSWLEC 544;
Gray v The Minister for Planning and Ors [2006] NSWLEC 720;
Oshlack v Richmond River Council (1998) 193 CLR 72 ;
Rosniak v Government Insurance Office (1997) 41 NSWLR 608;
Waters v PC Henderson (Australia) Pty Ltd (NSWCA, 6 July 1994, unreported)

DATES OF HEARING: 22 February 2007

DATE OF JUDGMENT:
27 February 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr N Perram SC
Mr A Crossland
SOLICITORS
Woolf and Associates
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
Mr J Kirk
SOLICITORS
Department of Planning, Legal Services Branch
THIRD RESPONDENT
Mr M Brennan (solicitor)
SOLICITORS
Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

27 February 2007

40870 of 2006 Gray v The Minister for Planning and Ors (No 2)
JUDGMENT ON COSTS

1 Her Honour: These are Class 4 proceedings in which I delivered judgment on 27 November 2006 in Gray v The Minister for Planning and Ors [2006] NSWLEC 720 and made a declaration:

That the view formed by the Director-General on 23 August

2006 that the environmental assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project adequately addressed the Director-General’s requirements is void and without effect.

Set aside the decision of the Director-General of 23 August 2006 to place the Environmental Assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project on exhibition under s 75H(3) of the Environmental Planning and Assessment Act 1979.

Order that the Director-General reconsider whether the Environmental Assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project adequately addresses the Director-General’s requirements according to law.

2 I must now determine how costs should be awarded. The Applicant seeks all of his costs. The Second Respondent argued that there be no order as to costs or alternatively the order be limited to 50 per cent of the Applicant’s costs payable jointly and severally by the Second and Third Respondents. The First Respondent, the Minister, filed an early submitting appearance.

3 The Third Respondent argued the appropriate costs order is that there should be no order as to costs or alternatively that the Second and Third Respondents pay 50 per cent of the Applicant’s costs of the proceedings, in the…

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 Gray v Minister for Planning (No 2)

Details

AGLC: Gray v Minister for Planning (No 2) [2007] NSWLEC 91
Case: [2007] NSWLEC 91
Decision Date: 27 February 2007

CaseChat Overview and Summary

In the case of Gray v Minister for Planning (No 2), the applicant, Peter Gray, sought a review of a decision made by the Director-General of the Department of Planning regarding an environmental assessment lodged by Centennial Hunter Pty Ltd in respect of the Anvil Hill Project. The matter was heard in the Land and Environment Court of New South Wales before Pain J. The key issue for the court was to decide how costs should be awarded in these contested Class 4 proceedings.

The applicant sought all of his costs, while the second and third respondents argued that there should be no order as to costs or alternatively that the order be limited to 50 per cent of the applicant's costs payable jointly and severally by the second and third respondents. The first respondent, the Minister, filed an early submitting appearance. The court considered the arguments presented by all parties and examined the chronology of events provided by the third respondent.

Pain J held that the applicant was partially successful in the proceedings as a declaration was made which confirmed that one of the grounds supporting the principal ground of challenge was correct. However, the court did not make all the declarations and orders sought by the applicant. The court found that there was no disentitling conduct by the applicant related to the litigation and that the usual order in Class 4 proceedings is that costs follow the event.

The court considered the relevant costs principles identified in the cases relied on by the parties and concluded that it was appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which the applicant was successful and those on which he failed. Pain J also found that there must have been some costs thrown away, albeit unspecified, by the respondents due to the late abandonment of issues by the applicant. Therefore, the court ordered that the second and third respondents pay the applicant's costs, excluding those associated with the "four challenges" contained in the applicant's points of claim which were abandoned on 1 November 2006.

In conclusion, the Land and Environment Court awarded the applicant his costs in the proceedings, finding that he was largely successful in obtaining a declaration, but did not make all the declarations and orders sought. The court also ordered that the second and third respondents bear the costs, excluding those associated with the abandoned issues.

Orders