Oshlack v Richmond River Council - [1996] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S133 of 1996

B e t w e e n -
AL OSHLACK
Applicant
and
RICHMOND RIVER COUNCIL

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 DECEMBER 1996, AT 11.06 AM

MR J. BASTEN, QC: If the Court pleases, I appear for the applicant. (instructed by Bartier Perry & Purcell)

MR B.R. McCLINTOCK, SC: May it please the Court, I appear with my learned friend, MR G.O’L. REYNOLDS, for the respondent. (instructed by Hannigans)

BRENNAN CJ: Thank you, Mr McClintock. We would be advantaged to hear you first.

MR McCLINTOCK: Thank you, your Honour. Your Honours, there are four reasons, in my submission, why this Court should decline special leave in this matter. In broad outline, they are these. First, the decision of the Court of Appeal in proceedings below is not attended by any sufficient doubt and that proposition, in my respectful submission, divides itself into two sub-propositions. The first is that the Court of Appeal’s decision was simply an application for binding an indistinguishable authority of this Court, that is Latoudis v Casey. The second sub-proposition is that the decision of the Court of Appeal was an application of longstanding and uncontroversial principle, that is, the principles exemplified by what the Court said in Latoudis v Casey, that is, that the purpose of costs orders is to compensate the successful litigant, not to punish the unsuccessful one, and that therefore factors particular to the unsuccessful litigant are irrelevant in determining where the burden of costs should fall.

The second factor which we would say indicates special leave should not be granted, is that, at base, the issue involved is one merely of construction of a New South Wales statute, that is section 123 of the Environmental Planning and Assessment Act and concerning the practices of a subordinate New South Wales court, that is the Land and Environment Court, in relation to matters of costs. The third reason is that this Court would necessarily be called upon to re-exercise a discretion exercised by the Court of Appeal. What the Court of Appeal in fact did was find that Mr Justice Stein, of the Land and Environment Court, had incorrectly exercised a discretion by taking into account an irrelevant factor and then itself re-exercised that discretion, taking into account additional factors thought sufficient by their Honours.

The fourth and final point, by way of outline, your Honours, is that if it is felt that the decision of the Court of Appeal is wrong, it is a very easy matter for the legislature to amend the relevant section of the Act so as to vary the ordinary costs rules.

If I could turn, your Honours, to the first proposition I wish to advance, which is that Latoudis v Casey 170 CLR 534, was…

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: [1996] HCATrans 368
Decision Date

CaseChat Overview and Summary

Oshlack, the applicant, sought judicial review of a decision by the Richmond River Council, the respondent, to grant development consent for a residential subdivision. The applicant contended that the Council had failed to take into account a relevant consideration, namely the potential impact of the development on the endangered Richmond Birdwing butterfly. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Council, in granting development consent, had failed to consider a relevant consideration under section 94(1) of the Environmental Planning and Assessment Act 1979 (NSW). Specifically, the Court had to determine if the potential impact on the Richmond Birdwing butterfly was a matter that the Council was bound to consider, and if its failure to do so rendered the consent invalid.

The High Court held that the Council had a duty to consider the potential impact on the Richmond Birdwing butterfly. Brennan CJ, Toohey and Gummow JJ reasoned that the species' endangered status, coupled with the likely impact of the development on its habitat, made it a relevant consideration for the Council. The Court found that the Council's failure to adequately address this matter constituted a failure to take into account a relevant consideration, thereby vitiating the development consent. The Court applied the principles of administrative law concerning the proper exercise of statutory power, emphasizing that decision-makers must consider all relevant factors prescribed or implied by the governing legislation.

The High Court ordered that the development consent granted by the Richmond River Council be quashed.

Orders