Cumming v Minister for Planning [No 2] [2020] VSCA 231

1 The Court, having granted leave to appeal, dismissed this appeal on 20 August 2020 and has now had the benefit of the parties' submissions as to costs. These reasons should be read with the principal reasons of the Court.[1]

2 Each of the successful respondents, namely the Minister for Planning (the first respondent) and the proponent of the wind farm development, WestWind Energy Pty Ltd ('WestWind') (the second respondent), seeks an order that the appellants pay their costs of the application for leave to appeal and of the appeal on the standard basis. (The third respondent took no part in the appeal.)

3 The appellants resist any costs order against them and submit that each party should bear their own costs, alternatively that the appellants' liability for the respondents' costs should be limited, or apportioned as to half, so that they are not burdened with two sets of costs.

4 The appellants submit that the case involved the public interest and that they succeeded in obtaining leave to appeal on four of their five grounds. They refer to the High Court's decision in Oshlack v Richmond River Council,[2] and submit that, similarly to the appellant in that case, the appellants have served the public interest and were motivated by a desire to preserve the habitat of the endangered Brolga, a native Australian crane, and obedience to environmental law. They say further that WestWind had submitted development plans in May 2020 that were inconsistent with the conditions of the planning permit, and that the Minister had made mistakes when he granted that permit.

5 The appellants also point to the fact that the respondents could have called Mr Lane to give expert evidence at trial, which would have assisted the Court and helped avoid uncertainty as to the relationship between Document 86 and the BL&A habitat methodology. Mr Lane was called by WestWind at the panel hearing. It is said that, had WestWind or the Minister done so before the primary judge, the factual controversy that spawned the judicial review and appeal proceedings could have been avoided.

6 In respect of the burden of more than one set of costs, the appellants submit that WestWind was joined to the proceeding at its own election and that the Minister and WestWind adopted each other's submissions at trial and on appeal. It was said that the impact of the orders sought by the Minister and WestWind would be crushing on the appellants and unjust in all the circumstances of the case.

7 In our opinion, the appellants should pay the costs of the first and second respondents.

8 As to the public interest, it is plain that the case involves the public interest. There were contentious issues of public interest addressed in evidence and submissions before the panel. In that context, both sides advanced matters they considered were significant in the public interest. That was inevitable in a case involving both fauna conservation and wider environmental considerations including climate change.

9 Of course, the fact that the litigation is 'public interest litigation' dictates no particular result. Nor is it a useful designation.[3] Public interest considerations are, however, able to be brought into account in exercising the costs discretion. In Oshlack, it was held that it was open, under the statutory provision for costs there under consideration, to take account of the appellant's motivation to ensure obedience to environmental law and to preserve koala habitat, having nothing else to gain from the litigation. It was also relevant that a significant number of members of the public shared the appellant's stance as to the proposed development and that the challenge was arguable and had resolved significant issues regarding endangered fauna laws.[4]

10 Likewise, we take account of the present appellants' motivation to secure Brolga habitat and ensure compliance with environmental laws. We note, in the case of the second appellant, that he also farms land in close proximity to the proposed wind farm and is concerned about potential noise impacts from its wind turbines. On the other hand, it is inescapable that the Minister, in particular, takes a view of the public interest that encompasses additional considerations including the generation of renewable energy. It is not for the Court to seek to balance these interests to the extent they compete. That was, consistently with planning laws, the responsibility of the Minister with the assistance of the public process undertaken by the panel. The point is that both the appellants and respondents can be said to have sought to advance public interest objectives.

11 Even if we considered that, despite the competing public interest considerations at stake in the litigation, primary account should be taken of the motivations of the appellants, that factor tends to have reduced weight in an appeal. The claims of the appellants had already been advanced before the primary judge, without success. The public interest in challenging that decision seems to us to be less powerful than the public interest in initiating the judicial review proceeding. The matters in dispute had, after all, been fully tested and ruled upon in the Trial Division. Our impression in that respect is borne out by the fact that none of the grounds of appeal was upheld. The grant of leave to appeal indicates no more than that the grounds had real prospects of success in the sense that they were not fanciful.

12 The appellants' claim that WestWind submitted development plans in May 2020 that were inconsistent with the conditions of the planning permit was the subject of an unsuccessful application to rely on fresh evidence as part of the appeal. In those circumstances, we do not consider that to be a matter relevant to the costs of the appeal. Nor is it significant that the Minister made mistakes when he granted the permit. The appeal sought to render ineffective the Minister's correction of those mistakes. Had it succeeded in that respect, the Minister's mistakes would have been perpetuated until they could have been addressed by other means. If the fact that the Minister made mistakes bears on the public interest at all, it is at least arguable that the public interest lay in correcting rather than entrenching those mistakes.

13 The fact that the respondents could have called Mr Lane to give expert evidence at trial is of no relevance. The burden of proof lay at all times on the appellants, who could have called Mr Lane to give evidence in the judicial review proceeding themselves. But in any event, this was at best a factor relevant to that proceeding. It cannot bear on the costs of the appeal, by which point the state of the record was known and the time for deciding whether Mr Lane would give evidence had passed.

14 In the end, we do not find the public interest considerations, or any of the other matters relied on by the appellants, sufficient to warrant a departure from the ordinary rule that costs follow the event, that is, the unsuccessful party to an appeal pays the costs of the successful party. The costs discretion should be exercised according to that principle.

15 As to the fact that there were two successful respondents, it was not submitted that the Minister and WestWind duplicated each other's submissions or contributed to any waste of costs. Although WestWind was joined to the proceeding upon its own application, it was plainly a proper party and ought to have been joined at the outset. It was also appropriate for the Minister and WestWind to be separately represented. Among other things, they had different interests in the question of the proper construction of the planning permit conditions.

16 The impact of the orders sought by the Minister and WestWind on the appellants is not, without more, a basis to refuse the successful respondents their costs.[5] There is no unfairness in requiring them to pay the costs of the Minister and WestWind.

17 The Court will order that the appellants pay the first and second respondents' costs of and incidental to the appeal, to be taxed on the standard basis in default of agreement. The effect of r 63.22 of the Supreme Court (General Civil Procedure) Rules 2015 is that this order applies also to reserved costs including those of the application to adduce fresh evidence.

[1] Cumming v Minister for Planning [2020] VSCA 208.

[2] [1998] HCA 11; (1998) 193 CLR 72 ('Oshlack').

[3] Ibid 84 [31] (Gaudron and Gummow JJ).

[4] Ibid 80-1 [20], 91 [49] (Gaudron and Gummow JJ).

[5] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, 168 [1]-[3], 174 [27], 177 [36] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).