Xstrata Coal Queensland Pty Ltd v Friends of the Earth Brisbane Co-Op Ltd (No. 2)
[2012] QLC 67
•3 December 2012
LAND COURT OF QUEENSLAND
CITATION: Xstrata Coal Queensland Pty Ltd & Ors v. Friends of the Earth - Brisbane Co-Op Ltd (No. 2) [2012] QLC 67 PARTIES: Xstrata Coal Queensland Pty Ltd, ICRA Wandoan Pty Ltd and Sumisho Coal Australia Pty Ltd
(applicants)
v. Friends of the Earth - Brisbane Co-Op Ltd
(respondent)FILE NO: MRA092-11 and EPA093-11
MRA098-11 and EPA099-11
MRA105-11 and EPA106-11DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: 3 December 2012 DELIVERED AT: Brisbane HEARD AT: Written submissions PRESIDENT: CAC MacDonald ORDER: The application for costs is refused. CATCHWORDS: COSTS - s.34 Land Court Act 2000 - objections to mining lease applications and associated environmental authority - whether objector on environmental grounds liable for costs when unsuccessful - objections by environmental group on climate change grounds - factors governing exercise of discretion - whether objections raised in the public interest - consideration of the objects, scope and purpose of the Mineral Resources Act 1989 and the Environmental Protection Act 1994 - application for costs refused
Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 74
BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140
BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173
Dunn v Burtenshaw (2011) 32 QLCR 270
Oshlack v Richmond River Council (1998) 193 CLR 72
Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd [2012] QLC 13SOLICITORS: Allens Lawyers for the applicants
Environmental Defenders Office Qld Inc for the respondent
This decision deals with an application for costs in relation to the hearing of applications for three mining leases, objections thereto, an application for an associated environmental authority, and objections to that application, the draft environmental authority and conditions included in the draft environmental authority.
Xstrata Coal Queensland Pty Ltd and others (the applicants) have applied for an order that the Friends of the Earth - Brisbane Co-Op Limited (FoE) pay the applicants' costs in the proceeding insofar as they relate to the objection lodged by the FoE, including reserved costs, to be assessed on the standard basis.
By the date of hearing, there were 17 objectors to the mining lease applications and associated environmental authority application, 16 of whom were landowners of property in or near the proposed mining lease areas. The seventeenth objector was the Friends of the Earth - Brisbane Co-Op Limited. The Department of Environment and Resource Management was also a party to the proceedings, as statutory party.
As recognized in my decision dealing with the mining lease applications (MLAs) and objections and the objections to the associated draft environmental authority (EA), the landowners' objections were based, broadly speaking, on their concerns as to the size of the proposed mine and the impact of the proposed mine on their general amenity and the productive use of their land. The FoE objected to the MLAs and the draft EA on climate change grounds.[1]
[1] Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-op Ltd [2012] QLC 13 at [52].
The result of those proceedings was that I recommended to the Honourable the Minister administering the Mineral Resources Act 1989 (MRA) that, subject to various conditions as set out in my recommendation, the mining lease applications be granted. I also recommended to the Honourable the Minister administering the Environmental Protection Act 1999 (EPA) that, subject to two conditions, the environmental authority be issued in the terms of the draft environmental authority issued on 10 December 2010.
Statutory Provision
Section 34 of the Land Court Act 2000 provides that -
"34. Costs
(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2) If the court does not make an order under subsection (1), each party to the proceeding must bear the party's own costs for the proceeding.
(3) An order made under subsection (1) may be made an order of the Supreme Court and enforced in the Supreme Court.
(4) For subsection (3), it is enough to file the order in the Supreme Court.
(5) The court may, if it considers it appropriate, order the costs to be decided by the appropriate assessing officer of the Supreme Court.
(6) If the court makes an order under subsection (5), the assessing officer may decide the appropriate scale to be used in assessing the costs."
Applicants' submissions
The applicants submitted that a costs order should be made against the FoE because:
(a) The FoE's objection called for recommendations against the grant of mining leases and associated environmental authority to the applicants. The essential ground of objection was that the proposed mine would cause serious environmental harm due to the large emission of greenhouse gases from the mining and use of the coal.
(b) The FoE objections were wholly unsuccessful. The Court found that not proceeding with the proposed mine would have no effect, or no significant effect, on climate change and ocean acidification and that the FoE were unable to point to any particular environmental harm which the proposed mine would cause.
(c) The findings were based on an overwhelming body of evidence which was not contradicted by any convincing evidence adduced by the FoE. Proceeding in the face of the evidence to request the Court to make an unfavourable recommendation was both extreme and unreasonable.
(d) The FoE interest in the proceedings was not as tangible as that of the landowners, but was political or philosophical. Its lack of direct interest favoured the exercise of the discretion to order costs.
(e) The costs occasioned by the FoE objection were discrete.
The applicants also submitted that, notwithstanding the unfettered discretion which the Court has, there are some well established factors to be taken into account in exercising the discretion, including:
(a) The result. While the rule that costs follow the event is not automatically applied under s.34(1), it is one which is deeply embedded in the law.[2] In BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd,[3] it was said that the outcome of a proceeding is a "significant factor influencing the exercise of the discretion to award costs".
(b) The conduct of the FoE in relation to the objection. Extreme and unreasonable conduct is a circumstance in favour of an award of costs.
(c) The interest of the FoE in relation to the objection. The fact that a landowner exercises a statutory right to object in circumstances where the grant of a mining lease might lead to an unwelcome intrusion onto the landowner's property, is a relevant circumstance. So too must be the lack of any such interest.
[2]Citing Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 134; Haber v Department of Main Roads (2004) 25 QLCR 241; Anson Holdings Pty Ltd v Wallace (2010) 31 QLCR 74 at [10]; BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) (2009) 30 QLCR 173 at [12].
[3] (2009) 30 QLCR 140 at [15].
Case law
In Anson Holdings Pty Ltd v Wallace,[4] the Land Appeal Court held that s.34 of the Land Court Act enables the Land Court to award costs in respect of the hearing of mining lease applications and objections and the hearing of objections to a draft environmental authority.
[4] (2010) 31 QLCR 74 at [18] and [21].
The Land Appeal Court said that the discretion given to the Land Court by s.34 is complete and is not to be fettered by any preconceived rules or principles other than that the discretion is to be exercised judicially.[5] The Court also referred with approval to the decision of the Land Appeal Court in BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (No 2) where the Land Appeal Court said[6] -
"[6] In Wyatt v Albert Shire Council, the Full Court considered s.31(1) of the City of Brisbane Town Planning Act 1964 which relevantly provided that the Local Government Court may make such order as it thinks fit as to the costs of any proceeding before it. The similarity between s.31(1) and s.34(1) has been recognized by this Court in the past. The Full Court held in Wyatt that the effect of s.31 was that the discretion conferred with respect to costs is complete or full. The discretion is not to be exercised arbitrarily, but judicially, that is, for reasons that can be considered or justified. Resort may be had to any settled practice of a court but a purported exercise of discretion which fails because the mind is closed to relevant considerations through a rigid adherence to preconceptions is an error of law. Thus an approach that required exceptional circumstances to be established before such a wide discretion is exercised is likely to be incorrect. Similarly it would not be right to start with the preconception that costs follow the event. The Court also said that it would be wrong to attempt to lay down rules governing the exercise of the discretion and each case should be governed by its circumstances." (Footnotes omitted).
[5] At [22].
[6] (2009) 30 QLCR 173 at [6].
In Anson Holdings, the Land Appeal Court recognized that the appellant landowner had a statutory right to object to the mining lease on the ground that the relevant statutory provisions had not been complied with. In exercising the discretion given by s.34, the Court said, it is relevant to take into account the fact that the grant of a mining lease can lead to an unwelcome intrusion on to the objector's property. Other factors that may be taken into account are the conduct of the objector in pursuing the objections including a consideration of the nature of the objections, whether there was any reasonable prospect of success in pursuing the objections, the degree of prejudice likely to be suffered by the objector if the right to object were not pursued, whether the objector's conduct led to an unnecessarily lengthy hearing and whether in general the objector had progressed the objections in a reasonable manner. The conduct of all the parties to the proceeding and any other relevant factor may also be taken into account by the Court.[7]
[7] (2010) 31 QLCR 74 at [37], [38].
Unlike Anson Holdings, this application for costs raises the issue of whether an objector, whose objection is based on environmental grounds is liable for costs, when the objector has been unsuccessful in the substantive proceedings.
The Land Appeal Court dealt with such an application for costs in Dunn v Burtenshaw.[8] Following the dismissal of an appeal by Mr Dunn to the Land Appeal Court,[9] the respondents (the Burtenshaws) applied to the Land Appeal Court for an order, inter alia, that Mr Dunn pay the costs of the hearing before the Land Appeal Court. The Land Appeal Court ordered that Mr Dunn pay the respondents' costs limited to the sum of $2,752.75, being Counsel's costs for the preparation of submissions to the Land Appeal Court.
[8] (2011) 32 QLCR 270.
[9] Dunn v Burtenshaw (2010) 31 QLCR 156.
The Land Appeal Court recognized that it was relevant in a case of this nature to consider whether the objection was one which was raised in the public interest. The Court referred to the Australian Law Reform Commission Report "Costs Shifting - Who pays for Litigation",[10] where the Commission's recommendation 45 was that statutory provision be made for public interest costs orders by Federal Courts and Tribunals. The Report sought to define public interest by setting out conditions for the making of such orders, namely that the Court or Tribunal be satisfied that:
1.The proceedings will determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community.
2.The proceedings will affect the development of the law generally and may reduce the need for further litigation.
3.The proceedings otherwise have the character of public interest or test case proceedings.
In Dunn v Burtenshaw,[11] the Land Appeal Court accepted that those observations were apposite to the proceedings before that Court.
[10] Report No 75.
[11] (2011) 32 QLCR 270 at [31].
The Court said that Mr Dunn had adopted a public interest stance contending that his only interest was in the protection of the community and the environment. He was particularly concerned about the impacts on the environment of various processes adopted by miners.[12] Further, the Court said, Mr Dunn's actions in bringing the appeal might be thought to be almost entirely in the public interest notwithstanding that he was clearly also concerned to protect his amenity.[13] However, the Court observed, Mr Dunn was not entitled to embark on litigation which was doomed to failure and which would inevitably put other parties to substantial costs, without risk of being liable for costs.[14]
[12] Dunn v Burtenshaw (2011) 32 QLCR 270 at [23].
[13] At [30].
[14]At [24], citing Oshlack v Richmond River Council (1998) 193 CLR 72 at [134] and McClure v City of Stirling [No 3] (2009) 170 LGERA 138 at [32] - [34].
In the end, Mr Dunn was ordered to pay limited costs. Although the Court had reservations about the conduct of Mr Dunn, the respondents had raised a point that had not previously been tested and one in respect of which there was no guiding decision. Mr Dunn ought therefore be given the benefit of the doubt with respect to the prospect of a costs order against him. However Mr Dunn was apprised of the respondents' arguments in advance of the hearing and he had the opportunity to abandon the appeal. He did not do so.[15]
[15] Dunn v Burtenshaw (2011) 32 QLCR 270 at [33], [34].
Outside the immediate jurisdiction of the Land Court, the leading case on "public interest" litigation is the decision of the High Court in Oshlack v Richmond River Council.[16] Section 123 of the Environmental Planning and Assessment Act 1979 (NSW) authorized any person to bring proceedings in the NSW Land and Environment Court for an order to remedy or restrain a breach of the Act. Mr Oshlack had brought proceedings against the Richmond River Council and a developer, challenging the consent granted by the Council to a proposed development. Mr Oshlack had no personal interest in the outcome of the proceedings but was seeking to preserve the koala habitat at the development site. Section 69(2) of the Land and Environment Court Act 1979 (NSW) provided that the costs of proceedings in that Court were in the discretion of the Court and that the Court may determine by whom and to what extent costs are to be paid.
[16] (1998) 193 CLR 72.
The trial judge dismissed Mr Oshlack's application and held that there should be no order as to costs. The New South Wales Court of Appeal reversed the decision with respect to the Council's costs and ordered Mr Oshlack to pay the Council's costs at first instance and in the Court of Appeal. On appeal, the High Court held by a majority (3:2) that the costs order made by the primary judge should be reinstated. Gaudron and Gummow JJ (joint judgment) and Kirby J constituted the majority.
Gaudron and Gummow JJ noted that the terms of s.69(2) of the Land and Environment Court Act, which conferred a discretion on the primary judge, were such that it was inappropriate to make conditions or impose limitations which were not found in the words of the section.[17] There was no indication in the words of the section of the considerations upon which the discretion was to be exercised. The power was to be exercised judicially, not arbitrarily, capriciously or so as to frustrate the legislative intent. Subject to those considerations the discretion conferred was unconfined except in so far as "the subject matter and the scope and purpose" of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be "definitely extraneous to any objects the legislature could have had in view".[18]
[17] At [21].
[18]At [22], citing Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.
Gaudron and Gummow JJ said that where an absolute discretion is conferred, there is no absolute rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party.[19] Nor is there any absolute proposition that the sole purpose of a costs order is to compensate one party at the expense of another.[20] Section 69 of the Land and Environment Court Act was not to be narrowly construed. Further, it is applicable to new species of litigation and the discretion it confers is to be exercised so as to allow for the varied interests at stake in such litigation.[21] The matters taken into account by the primary judge in exercising the discretion not to award costs were summarized by Gaudron and Gummow JJ as follows[22] -
[19] At [40].
[20] At [43].
[21] At [45].
[22] At [20].
"(i)The "traditional rule" that, despite the general discretion as to costs being "absolute and unfettered", costs should follow the event of the litigation "grew up in an era of private litigation". There is a need to distinguish applications to enforce "public law obligations" which arise under environmental laws lest the relaxation of standing by s 123 have little significance.
(ii)The characterisation of proceedings as "public interest litigation" with the "prime motivation" being the upholding of "the public interest and the rule of law" may be a factor which contributes to a finding of "special circumstances" but is not, of itself, enough to constitute special circumstances warranting departure from the "usual rule"; something more is required.
(iii)The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna".
(iv)In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation.
(v)The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public.
(vi)It followed that there were "sufficient special circumstances to justify a departure from the ordinary rule as to costs". (Footnotes omitted).
Gaudron and Gummow JJ concluded that there was no miscarriage in the exercise by the trial judge of the discretion as to costs and allowed the appeal.
Kirby J allowed the appeal on the principal basis that the primary judge was not in error in giving weight to the public interest character of the proceedings. In the absence of s.123, he said, it was unlikely that the appellant would have had standing to bring his claim. That section and a suite of similar provisions in other statutes reflected a parliamentary conclusion that it was in the public interest that such individuals and groups should be able to engage the jurisdiction of the Land and Environment Court although they have no personal financial or like interest to do so. The removal of the barrier to standing might amount to an empty gesture if the public character of the litigation could not be taken into account in disposing of a costs application.[23]
[23] At [113], [114].
Kirby J said that in exercising its powers under s.123 the court was obliged to take into account the objects of the Environmental Planning and Assessment Act which included the provision of increased opportunity for public involvement and participation in environmental planning and assessment.[24] If these special provisions were taken into account, it was to be appreciated that the costs provision in the Land and Environment Court Act appeared in a statutory context which altered the assumptions on which civil litigation has ordinarily taken place. Instead of a purely adversarial contest between two parties having individual, and typically financial, interests to advance, Parliament has envisaged that, in some cases at least, an individual or representative body will seek to uphold one perception of the public interest and the requirements of environmental law against a local authority seeking to uphold another perception.[25] If the narrow view favoured in the Court of Appeal were adopted it could have the effect of impeding or frustrating the achievement of the object which the widening of standing rights was designed to secure.[26]
[24] At [116].
[25] At [117].
[26] At [119].
Having examined the statutory context of s.69 of the Land and Environment Court Act and noted that it was the clear purpose of Parliament to permit and even encourage individuals and groups to exercise functions in the enforcement of environmental law, Kirby J concluded that a rigid application of the compensatory principle in costs orders would be completely impermissible where the Court has a discretion to order costs. The compensatory principle is adequately reflected by a general practice that costs are ordered in favour of a successful party. However, the general objects of the legislation must be taken into account and regard may therefore be had to any public interest served by the unsuccessful party who initiated the litigation. If a party unreasonably pursues or persists with points which have no merit, such conduct is relevant to the ordering of costs, even when that party is generally successful. Litigants espousing the public interest are not granted an immunity from costs or a free kick in litigation.[27]
[27] At [134].
Conclusions
The applicants submitted that the interest of the FoE in pursuing their objection was to be distinguished from the interest of a landowner who exercises a statutory right to object where the grant of a mining lease might lead to an unwelcome intrusion on to the landowner's property. The FoE interest was not as tangible as that of a landowner, but was political or philosophical, the applicants said.
Section 260(1) of the MRA provides that an entity may, on or before the last objection day for the application, lodge with the mining registrar an objection in writing in the approved form. There is no restriction in s.260(1) as to the grounds on which an objection may be lodged. The MLA objection lodged by the FoE was based on environmental grounds and cannot be said to be outside the scope and purpose of the MRA. Section 269(4) of the MRA requires the Land Court, when making a recommendation to the Minister, to take into account and consider whether, inter alia -
"(j) there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k) the public right and interest will be prejudiced."
In addition, one of the objectives of the MRA, set out in s.2(d) of that Act, is to encourage environmental responsibility in prospecting, exploring and mining. It follows that it was within the scope and purpose of the MRA that objections may be lodged and evidence led about environmental issues. In my opinion, the FoE were exercising a statutory right to object by lodging an application on those grounds.
Similar reasoning applies in respect of the FoE objections lodged under the EPA. Section 216(1) of the EPA provides that -
"216 Right to make objection
(1) An entity may make an objection about -
(a) the application; or
(b) the draft environmental authority for the application; or
(c) a condition included in the draft."
Again there is no limitation on the grounds on which an objection may be lodged.
Section 223 provides -
"223 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following -
(a)the application documents for the application;
(b)any relevant regulatory requirement;
(c)the standard criteria;
(d)to the extent the application relates to mining activities in a wild river area - the wild river declaration for the area;
(e)each current objection;
(f)any suitability report obtained for the application;
(g)the status of any application under the Mineral Resources Act for each relevant mining tenement."
Section 3 provides that -
"3 Object
The object of this Act is to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development)."
Objections lodged on environmental grounds are clearly within the central focus of the EPA and therefore the FoE were also exercising a statutory right to object by lodging objections on environmental grounds under that Act.
I also consider that the FoE adopted a public interest stance in bringing the objections under both Acts, and participating in the ensuing hearing. The group had no personal or financial interest in the outcome and their only interest was in the protection of the environment and the community generally. Further, I consider that the FoE litigation fulfils the criteria identified by the Australian Law Reform Commission as relevant to the question of whether the proceedings may be described as public interest proceedings.[28] The proceedings determined and clarified important issues of law affecting the community generally and the proceedings have affected the development of the law generally which should reduce the need for future litigation. As such they have the character of test case proceedings.
[28] See [14] above.
Moreover, for the purposes of the exercise of my discretion as to costs, I can see no reason to distinguish between the interest of a landowner and that of an environmental objector. Both types of objector are exercising statutory rights to object and there is nothing in the legislation to indicate that an objector in one category is more or less worthy than an objector in another category.
Characterisation of the FoE's case as one which adopted a public interest stance does not of itself determine the outcome of this costs application. However, it is one factor to be taken into account in the exercise of my discretion and it is a factor which points to the exercise of discretion in favour of the FoE.[29]
[29] Oshlack v Richmond River Council (1998) 193 CLR 72.
There are a number of other factors to be taken into account in exercising the discretion.
One such factor is that the FoE were not successful in their objections and as noted above, the outcome of a proceeding is a "significant factor influencing the exercise of the discretion to award costs".[30]
[30] BHP Queensland Coal Investments Pty Ltd v Cherwell Creek Coal Pty Ltd (2009) 30 QLCR 140 at [15].
However, it is also to be noted that the primary basis for my disallowing the mining lease objection was my interpretation of the relevant provisions of the MRA - ss.269(4)(i) and (j), s.234 and s.6A.[31] I held that the effect of those sections was that the Court was required to consider the extent of the adverse environmental impact caused by the activities of extracting the coal, that is the scope 1 and 2 emissions generated by the project. Further, it was beyond the Court's jurisdiction to take into account the impact of the scope 3 emissions being those resulting from the transportation of the coal product to ports, shipping and the end-use of the coal in electricity generation. While I did not accept the FoE submissions as to the interpretation to be given to those provisions, it is important to observe that the applicants did not address this issue at all other than to adopt, somewhat belatedly in oral submissions, the submissions by the statutory party to that effect. Thus while my conclusions on the objection favoured the applicants' position, I do not consider that their submissions assisted me in any significant way in this aspect of the matter.
[31]Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd [2012] QLC 013 at [520] - [531]; [565].
As an alternative to that conclusion in the substantive proceedings, I considered a submission from the FoE as to the meaning of the words "impact" and "environmental" in s.269(4)(j) of the MRA which provides that the Land Court, when making a recommendation to the Minister, shall take into account and consider whether "there will be any adverse environmental impact caused by those operations".[32]
[32] At [532].
While I also rejected the FoE submissions on that issue, I did accept the applicants' submissions as to whether a causation test was established under s.269(4)(j). However, the underlying basis of my conclusions on this issue was the interpretation I had given to the word "operations" in s.269(4) which had not been substantially addressed by the applicants.
The applicants have submitted that the Court's findings on the climate change issue were based on an overwhelming body of evidence and that proceeding in the face of that evidence to request the Court to make an unfavourable recommendation was both extreme and unreasonable.
As discussed above, my primary reason for rejecting the FoE submissions was based on my interpretation of the relevant statutory provisions, not on a consideration of the evidence. However, it is correct to say that, as a third reason for my decision, I did find that, on the evidence, it was difficult to see that the project would cause a relevant impact on the environment.[33] That is not to say, however, that I accept that the conduct of the FoE, in proceeding with their objection in the face of that evidence was extreme and unreasonable. The issues raised were complex, both legally and factually. In those circumstances it was not unreasonable for the FoE to test the applicants' evidence, to call evidence in support of the FoE submissions and to have the issues determined by the Court.
[33] At [559] - [563].
Moreover, the FoE's submissions raised a number of legal issues that had not previously been dealt with authoritatively or at all. These included the interpretation of the relevant statutory provisions, including the application of case law from other jurisdictions to the Queensland legislation. The FoE conducted their case in a reasonable manner and did not cause any unnecessary lengthening of the case.
Similar reasoning applies to the hearing and determination of the EA objections. My decision in that regard was based primarily on interpreting the relevant statutory provisions, which was not an issue substantively addressed by the applicants. As with the MLA objections, the FoE submissions raised legal issues that had not been dealt with authoritatively in Queensland.
Having taken all these factors into account, I do not consider that the application for costs should succeed.
ORDER
The application for costs is refused.
CAC MacDonald
PRESIDENT OF THE LAND COURT
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