Kennedy v NSW Minister for Planning

[2010] NSWLEC 164

Land and Environment Court

of New South Wales

CITATION:

Kennedy v NSW Minister for Planning [2010] NSWLEC 164
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT:
Roy “Dootch" Kennedy OBO The Sandon Point Aboriginal Tent Embassy

FIRST RESPONDENT:
NSW Minister for Planning

SECOND RESPONDENT:
Stockland Developments Pty Ltd

FILE NUMBER(S):

40129 of 2010

CORAM:

Biscoe J

KEY ISSUES:

COSTS :- class 4 proceedings - public interest litigation - whether there should be departure from the usual costs order that costs follow the event.

LEGISLATION CITED:

Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act, Part 3A

CASES CITED:

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
Kennedy v NSW Minister for Planning [2010] NSWLEC 129
Minister for Planning v Walker (No 2) [2008] NSWCA 334

DATES OF HEARING:

31 August 2010

EX TEMPORE JUDGMENT DATE:

31 August 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oslack, agent
SOLICITORS
n/a

FIRST RESPONDENT:
Dr J G Renwick, barrister
SOLICITORS
Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 August 2010

40129 of 2010

KENNEDY v NSW MINISTER FOR PLANNING & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: The applicant is an Aboriginal man who, on behalf of the Aboriginal Tent Embassy, unsuccessfully challenged the validity of a major project approval at Sandon Point granted on 29 November 2009 by the first respondent, the Minister for Planning, to the second respondent, Stockland Development Pty Ltd, under Part 3A of the Environmental Planning and Assessment Act 1979: Kennedy v NSW Minister for Planning [2010] NSWLEC 129. Costs were reserved.

2 The Minister, but not Stockland, now applies for an order that the applicant pay the Minister’s costs. The applicant submits that each party should pay his own costs. The applicant relies on the public interest nature of the litigation.

3 The unsuccessful challenge to validity was on four grounds. First, that the Minister’s decision was ultra vires. Secondly, the Minister failed to consider several mandatory relevant considerations including (a) consideration of failure to consult with Aboriginal community groups and (b) consideration of flooding impacts including from climate change. Thirdly, the Minister erred in two other respects. Fourthly, the Minister’s decision was manifestly unreasonable.

4 The power of the Court to order costs is in s 98 of the Civil Procedure Act 2005. Section 98(1) provides that, subject to rules of Court, costs are in the discretion of the Court. The relevant Rules of Court include Part 42 of the Uniform Civil Procedure Rules 2005 (UCPR). Rule 42.1 provides that if the Court makes any order as to costs the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. The Land and Environment Court has adopted specific court rules, including in relation to costs in Class 4 of its jurisdiction which can prevail over r 42.1 of the UCPR to the extent of any inconsistency between them: Civil Procedure Act s 11; UCPR 1.7 in Schedule 2. The present proceedings are in Class 4 of the Court’s jurisdiction. Rule 4.21 of the Land and Environment Court Rules 2007 provides

“The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied the proceedings have been brought in the public interest.”

5 A three step approach has been developed to determine whether to depart from the usual costs rule and make no order as to costs under the public interest provision in r 4.21. First, can the litigation be characterised as having been brought in the public interest? Secondly, if so, is there something more than the mere characterisation of the litigation that it has been brought in the public interest? Thirdly, are there any countervailing circumstances, including in relation to the conduct of the applicant which speaks against departure from the usual costs rule? See Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59, 173 LGERA 280 (Preston CJ); Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 (Pain J); Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155 (Preston CJ).

6 As for the first step, the Minister does not contest, and I find, that the proceedings were brought in the public interest. They were brought to uphold public law obligations under the Environmental Planning and Assessment Act and to ensure that the Minister’s exercise of power under Part 3A was lawful.

7 As for the second step, I find in relation to the second ground of challenge that insofar as it alleged failure to consult with the Aboriginal community, the nature, extent and other features of the public interest are significant and constitute something more than mere characterisation of the proceedings as being brought in the public interest (as in Hill Top at [41]). The applicant’s case in this regard concerned the construction and operation of the Director-General’s environmental assessment requirements and the Aboriginal consultation guidelines referred to therein which were concerned with the assessment of the impact of a project on Aboriginal cultural heritage. This was an issue of general importance and the proceedings materially contributed to an understanding of the issue.

8 Thirdly, in relation to that particular issue there are no countervailing circumstances that would lead the Court to order costs notwithstanding the public interest nature of the litigation.

9 In the circumstances, it is appropriate to make no order for costs in relation to that particular issue.

10 In my view the remainder of the grounds of challenge do not satisfy the second step in the three step approach. The applicant particularly emphasises the issue that the Minister failed to consider flooding impacts, including from climate change. In general terms I agree that there is a particularly strong element of public interest in the climate change/flooding issue in relation to this development site, as is evident from the Court of Appeal’s costs judgment in proceedings concerning the same site in Minister for Planning v Walker (No 2) [2008] NSWCA 334. However, the Minister responded positively to the Court of Appeal majority view in the Walker litigation that potential climate change flooding effect had to be taken into account when approval of the development was sought and, largely in consequence of that response, the flooding/climate change ground failed before me in these proceedings.

11 Accordingly, in my view, the Minister is entitled to the costs of the other grounds.

12 In reaching that conclusion I have taken into account the affidavits of the applicant that have been put before me. They indicate that he brought these proceedings in all sincerity; and that he considered the proceedings were important to the maintenance, of Aboriginal cultural heritage and the broader public interest.

13 A broad approach has to be taken to the apportionment of costs. My assessment is that a good majority of time at the hearing was concerned with the ground in relation to which I have determined that there should be no order as to costs. Doing the best I can, I attribute thirty per cent of the costs to the balance of the proceedings.

14 Accordingly, the order of the Court is that the applicant pay thirty per cent of the first respondent’s costs.

02/09/2010	-	applicant's full name on cover page - Paragraph(s) cover page
02/09/2010	-	applicant's name on cover page - Paragraph(s) cover page