Kennedy v NSW Minister for Planning - [2010] NSWLEC 269

Land and Environment Court

of New South Wales

CITATION: Kennedy v NSW Minister for Planning [2010] NSWLEC 269

PARTIES:
APPLICANT:
Roy "Dootch" Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy
FIRST RESPONDENT:
NSW Minister for Planning
SECOND RESPONDENT:
Stockland Developments Pty Ltd

FILE NUMBER(S): 40742 of 2010

CORAM: Biscoe J

KEY ISSUES: COSTS :- public interest litigation in class 4 proceedings - relevance of impecuniosity of unsuccessful applicant

LEGISLATION CITED: Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act 1979, s 75W, Pt 3A
Land and Environment Court Rules 2007, r 4.2
Uniform Civil Procedure Rules 2005, r 42.1

CASES CITED: Arnold v Minister Administering the Water Management Act 2000 (No 4) [2009] NSWLEC 87
Board of Examiners v XY [2006] VSCA 190
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59, 173 LGERA 280
Gray v Macquarie Generation (No 2) [2010] NSWLEC 82
Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155, 176 LGERA 20
Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975
Kennedy v Director-General of the Department of Environment and Conservation (No 2) [2007] NSWLEC 271
Kennedy v NSW Minister for Planning [2010] NSWLEC 129
Kennedy v NSW Minister for Planning [2010] NSWLEC 240
Oshlack v Richmond River Council (1994) 82 LGERA 236
Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212

DATES OF HEARING: Written submissions

DATE OF JUDGMENT:
31 December 2010

LEGAL REPRESENTATIVES: APPLICANT:
Mr Alan Oshlack, agent

FIRST RESPONDENT:
Dr J Renwick
SOLICITORS:
NSW Department of Planning
SECOND RESPONDENT:
Mr J Robson SC with Mr H El-Hage
SOLICITORS:
Herbert Geer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 December 2010

40742 of 2010

KENNEDY v NSW MINISTER FOR PLANNING AND ANOR

JUDGMENT

INTRODUCTION

1 HIS HONOUR: The applicant is an Aboriginal man who, on behalf of the Sandon Point Aboriginal Tent Embassy, unsuccessfully challenged the validity of two requests to modify a Major Project Approval at Sandon Point under s 75W of the Environmental Planning and Assessment Act 1979 (EPA Act): Kennedy v NSW Minister for Planning [2010] NSWLEC 240. The modification requests were granted by the first respondent, the NSW Minister for Planning, to the second respondent, Stockland Developments Pty Ltd.

2 Both the Minister and Stockland now seek orders that the applicant pay their costs of the proceedings. The applicant opposes these orders. Instead, the applicant submits that the respondents should pay the out of pocket expenses of the applicant’s agent, being $200. The applicant relies on the public interest nature of the litigation and the fact that he is impecunious.

3 The challenge to the modification approvals was on five grounds. First, the Minister failed to consider the protection of Aboriginal cultural heritage as recommended in three reports. Secondly, the Minister…

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: [2010] NSWLEC 269
Decision Date: 31 December 2010

CaseChat Overview and Summary

The applicant, Roy "Dootch" Kennedy, on behalf of the Sandon Point Aboriginal Tent Embassy, challenged the validity of two requests to modify a Major Project Approval at Sandon Point under s 75W of the Environmental Planning and Assessment Act 1979 (EPA Act), which were granted by the NSW Minister for Planning to Stockland Developments Pty Ltd. The applicant unsuccessfully sought to overturn the approval on various grounds, including the Minister's failure to consider the protection of Aboriginal cultural heritage, Aboriginal artefacts, and the principles of ecologically sustainable development. The Minister and Stockland now seek an order that the applicant pay their costs of the proceedings, which the applicant opposes. Instead, the applicant submits that the respondents should pay the out-of-pocket expenses of the applicant’s agent, being $200, due to the public interest nature of the litigation and the applicant's impecuniosity.

The Court considered whether the proceedings were brought in the public interest, whether the proceedings raised additional factors justifying departure from the usual costs rule, and whether there were any countervailing circumstances against departure from the usual costs rule. The Court found that the proceedings were brought in the public interest, as Sandon Point is a culturally significant area for Aboriginal people. The Court also found that the proceedings highlighted important differences between the Part 3A modification approval regime and the Part 3A project approval regime and the modification provisions found in Part 4 of the EPA Act. However, the Court found that the applicant's final two grounds of challenge did not satisfy the second step in the three step approach. In relation to the third step, countervailing circumstances, the Court found that the applicant's failure to make a submission was not a countervailing circumstance which spoke against departure from the usual rule as to costs. The Court further found that the applicant's impecuniosity, in the context of r 4.2 of the Land and Environment Court Rules, was sufficiently special as to reinforce the conclusion that there should be no costs order in relation to the first, second and third grounds of challenge.

Accordingly, the Court ordered the applicant to pay 20 per cent of the respondents’ costs, representing the Court's broad estimate of the incremental time apportioned to the two grounds which did not fall within the public interest exception. The Court also noted that the applicant’s submissions included allegations of falsehood and perjury which found no support in the evidence and which attempted to re-agitate issues that had been decided. Those submissions should not have been made and the Court gave them no weight.

In summary, the Court found that the proceedings were brought in the public interest and raised additional factors justifying departure from the usual costs rule. However, the Court found that the applicant's final two grounds of challenge did not satisfy the second step in the three step approach. The Court also found that the applicant's failure to make a submission was not a countervailing circumstance which spoke against departure from the usual rule as to costs. The Court ordered the applicant to pay 20 per cent of the respondents’ costs, representing the Court's broad estimate of the incremental time apportioned to the two grounds which did not fall within the public interest exception.

Orders