Australians for Sustainable Development Inc v Minister for Planning

JUDGMENT 1On 10 March 2011 I made an order dismissing these judicial review proceedings: Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33. However, I held that the applicant would have succeeded on Ground 2 but for the fact that two weeks after the hearing the first respondent, the Minister for Planning, amended SEPP 55 to exclude the two subject projects from its ambit. I expressed a preliminary view, subject to consideration of any submissions, that the respondents should pay the applicant's costs and that the Minister should pay the costs on an indemnity basis. I have now received costs submissions from all parties. 2In my primary judgment I said this about costs, at [298] - [308]: 298 As the applicant would have succeeded in the proceedings but for the Minister's post-trial 2011 amendment to SEPP 55, the question arises whether the respondents should be ordered to pay the applicant's costs and whether, having regard to the lateness of the amendment, the Minister should be ordered to pay those costs on an indemnity basis. I will give the parties the opportunity to make submissions on costs but, subject to consideration of any such submissions, I would make the following preliminary observations. 299 Subject to the rules of Court and to the Civil Procedure Act 2005, the Land and Environment Court has full power in civil proceedings to determine by whom, to whom and to what extent costs are to be paid, and may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98 Civil Procedure Act 2005. Parties are under an obligation to the Court, and in turn to the administration of justice, to assist the Court to further the just, quick and cheap resolution of the real issues in the proceedings: s 56(1), (3) and (4). These provisions reflect the fact that "the courts are concerned not only with justice between the parties, which remains the priority, but also with the public interest in the proper and efficient use of public resources": Aon Risk Management Services Australia Pty Ltd v Australian National University [2009] HCA 27, 239 CLR 175 at [23]. The resolution of disputes serves the public as a whole, not merely the parties to the proceedings: Aon at [113], Kelly v Jowett [2009] NSWCA 278, 76 NSWLR 405 at [57] - [58]. 300 Although costs on the ordinary basis are the norm, it is common knowledge that they provide an inadequate indemnity. In order to award costs on an indemnity basis, there must be sufficient special or unusual circumstances connected with the litigation justifying such an award: Harrison v Schipp [2005] NSWCA 133 at [8] - [10]; Mead v Watson [2005] NSWCA 133 at [8] - [10]. The categories in which the discretion to award indemnity costs may be exercised are not closed: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233. 301 The proceedings were commenced in late November 2010. The hearing commenced on 31 January 2011 and proceeded intermittently over six days concluding on 17 February 2011, followed by a supplementary written submission from the Minister on 22 February 2011. At the conclusion of the hearing, the proponents, with the acquiescence of the Minister and the applicant, requested that judgment be delivered in approximately two weeks. It was explained that the proponents had given some assurance to the applicant that they would not proceed with the work until the hearing but that if judgment could not be given within about two weeks it may be necessary for the matter to return to the Court for the parties to fight out an application by the applicant for an interlocutory injunction to restrain work pending judgment. It was in the interests of all parties that that should be avoided if possible. 302 On 2 March 2011, just before the expiry of that two week period and shortly before the anticipated date of publication of my judgment, the Minister exercised his power under s 75R(3A) of the EPA Act to amend SEPP 55 by order published on the NSW legislation website, so as to exclude the application of cl 17 and a closely related provision, cl 8(4), to these two projects only. This was the first amendment to SEPP 55 since Part 3A was introduced into the EPA Act in 2005. The amendment spelt the death knell of Ground 2 of the applicant's challenge. The order was in the following terms: 1 Name of Order This Order is the Environmental Planning and Assessment Amendment (State Environmental Planning Policy No 55-Remediation of Land) Order 2011. 2 Commencement This Order commences on the day on which it is published on the NSW legislation website. 3 Amendment of State Environmental Planning Policy No 55- Remediation of Land Clause 19A Insert after clause 19: 19A Application of SEPP to certain development at Barangaroo subject to Part 3A approvals (1) This clause applies to development that is the subject of the following project approvals under Part 3A of the Act: (a) project application number 10_0023, approved by the Minister for Planning on 2 November 2010, (b) project application number 10_0047, approved by the Minister for Planning on 8 November 2010. (2) To avoid doubt, the following provisions of this Policy do not apply to the carrying out of development to which this clause applies: (a) clauses 8 (4) and 17, (b) any other provision of this Policy that prohibits or restricts the carrying out of that development. 303 On 2 March 2011 the Minister arranged for the matter to be relisted before the Court, all parties attended and I was provided with a copy of the amending order. This development resulted in postponement of delivery of my reasons for judgment for a few days in order to take account of the new legal landscape. 304 An express object of SEPP 55 is to provide for a Statewide planning approach to the remediation of contaminated land. The effect of the 2011 amendment is to immunise the two subject developments at Barangaroo, and only those developments, from that Statewide approach, so far as concerns the safeguards in cl 17 of SEPP 55. 305 The Minister for Planning's 2011 instrument amending SEPP 55 stated that it was to "avoid doubt". However, the Director-General of the Department of Planning expressed no doubt in his May 2010 environmental assessment requirements (EARs) relating to these Barangaroo projects. The EARs identified SEPP 55 as a relevant environmental planning instrument and required the preparation of RAPS - for which cl 17(1)(c) of SEPP 55 provides...There is a tension between the Director-General's position as expressed in the EARs and the position taken in this litigation by the Minister for Planning and the other respondents that cl 17(1)(c) of SEPP 55 is inapplicable. 306 It is not the role of the Court to pass judgment on the merits of the Minister's decision to exercise his statutory power to amend a SEPP. But it may have costs consequences if the amendment is made after relevant legal proceedings have been commenced against the Minister raising an issue to which the amendment relates. Here litigation was on foot challenging the validity of the Minister's approval of projects or the lawfulness of the carrying out of approved projects on the basis that SEPP 55 had not been complied with. The Minister and the other respondents contested the challenge. The applicant would have achieved success in the proceedings but for the Minister's amendment to SEPP 55 made after the trial concluded. If the Minister wished to exclude these two developments from the application of cl 17 and cl 8(4), he could have exercised his power to make the amendment at any time after the commencement of the proceedings, if not before. The amendment changed the law on which the case had been fought. The timing of the amendment, almost two weeks after the conclusion of the hearing, has not been explained. Because the amendment was not made in a timely way, considerable legal costs and resources have been wasted by the applicant in relation to Ground 2. Resources of the Court have also been wasted. 307 In these special and unusual circumstances, the respondents are vulnerable to an order that they pay the applicant's costs and, because of the lateness of the amendment to the SEPP, the Minister is vulnerable to an order that he pay those costs on an indemnity basis. 308 I propose to reserve costs with the proviso that unless a party applies for a different costs order, accompanied by written submissions, within three working days, the order will be that the respondents pay the applicant's costs and that the Minister do so on an indemnity basis. 3In determining costs, I propose to take the approach propounded in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [5] per Allsopp P (Beazley and Campbell JJA agreeing): Three things need be borne in mind in a judgment such as this on costs: the desirability of avoiding unnecessary recitation of cases (abounding as they are in this area); the desirability of not restating, in different terms, approaches to the broad discretion that have been well settled; and the desirability of dealing with the arguments without over-elaboration, if this is possible. 4The applicant submits that the current proceedings are far from being a usual case and that the usual order that costs follow the event is inapplicable. Rather, the applicant submits that the following orders should be made: (a)the respondents pay the applicant's costs of the proceedings save with respect to the preparation of expert reports; and (b)the Minister pay such costs of the application on an indemnity basis. 5Alternatively, the applicant submits that if the Court is minded to reduce or apportion costs in some measure (taking account of the various arguments put by the respondents) then the Court might make the following orders: (a)Lend Lease and the Barangaroo Delivery Authority (BDA) pay 75% of the applicant's costs of the proceedings; and (b)The Minister pay 75% of the applicant's costs of the proceedings on an indemnity basis. 6The second respondent, Lend Lease, seeks an order that the applicant pay all of its costs, without qualification. Alternatively, if some allowance is made in the applicant's favour because of the Minister's order, the applicant should pay its costs thrown away in respect of expert evidence and the applicant's failure on grounds other than Ground 2 should be recognised in the costs order. The Minister and the third respondent, BDA, seek orders requiring the applicant to pay their costs on all grounds except Ground 2. The Minister says that if the Court is minded to make a costs order against him on Ground 2, it should be on the ordinary basis only. BDA says that there should be no order as to costs on Ground 2.