Dean v Minister for Planning and Andros Australia Pty Limited

KEY ISSUES: Costs :- judicial review proceedings - usual order that costs follow the event - whether circumstances warrant departure from usual order

Environmental Planning and Assessment Act 1979 Pt 3A, s 75J, s 123 LEGISLATION CITED: Land and Environment Court Act 1979 s 69 Legal Aid Commission Act 1979 s 42

Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR; Dean v Minister for Planning and Andros Australia Pty Limited [2007] NSWLEC 779 (28 November 2007); Drake-Brockman v The Minister for Planning (No 2) [2007] NSWLEC 777 (19 November 2007); CASES CITED: Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; Oshlack v Richmond River Council (1998) 193 CLR 72; Plumb v Penrith City Council (2003) 126 LGERA 109; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

APPLICANT Ms K Ruddock SOLICITORS Environmental Defenders' Office

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr S Free (barrister) SOLICITORS Legal Services Branch, Department of Planning

SECOND RESPONDENT Ms M Jolley SOLICITORS Blake Dawson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DEAN V MINISTER FOR PLANNING and ANDROS AUSTRALIA PTY LIMITED [No 2]

1 HIS HONOUR: On 28 November 2007 I delivered judgment in the substantive proceedings dismissing the applicant's challenge to the validity of the approval given by the Minister for Planning under Part 3A of the Environmental Planning and Assessment Act 1979 to the Anvil Hill Coal Project: Dean v Minister for Planning and Andros Australia Pty Limited [2007] NSWLEC 779 (28 November 2007). Both the Minister for Planning and Andros Australia Pty Limited now seek an order that the applicant pay their costs of the proceedings. 2 I note that the Court made a discrete order on 7 December 2007 that the applicant pay the Minister for Planning's costs thrown away as a result of leave being given to the applicant on 13 November 2007 to amend the points of claim. The current application relates to the balance of the costs of the proceedings. 3 Under s 69(2) of the Land and Environment Court Act 1979, costs are in the discretion of the Court. At the time of these proceedings, there was no rule of court structuring the exercise of the discretion (Pt 4 r 4.2(1) of the Land and Environment Court Rules 2007 does not come into force until 28 January 2008). In proceedings by way of civil enforcement or judicial review in Class 4 of the Court's jurisdiction the current general practice is to order that costs should follow the event, that is to say, that the unsuccessful party should pay the successful party's costs, unless there are circumstances of the case that warrant a different order. 4 In this case, the applicant submits that there are two circumstances that warrant departing from the usual order as to costs and instead making no order as to costs: (a) The proceedings were brought in the public interest, pursuant to the open standing provision of s 123 in the Act;

(b) The applicant's case on the ground pressed was clearly arguable, the issue considered was novel and of considerable practical significance, and the proceedings have assisted in clarifying the interpretation of important provisions of the Act with benefit to litigants, and the public, generally. 5 In support, the applicant read affidavits of herself, Annika Dean, and the applicant's solicitor, Ian Ratcliffe. 6 Ms Dean deposes to:

(a) commencing the proceedings on her own initiative and not in her capacity as a member of two environmental non-governmental organisations concerned about human-induced climate change and environmental advocacy and education;

(b) commencing the proceedings because of her concern that: (i) The "Anvil Hill Coal mine was approved unlawfully seeing as a portion of the site was zoned for environmental protection purposes (scenic and alluvial) under Muswellbrook Local Environmental Plan); and (ii) Pt 3A of the Act "gives the Minister too much discretion, which allows him to effectively override local environmental plans and completely disregard community opposition, and downstream environmental impacts, such as the carbon dioxide that will be emitted when the coal mined at Anvil Hill is burned";

(c) wanting to do all that she could "to ensure that the decision whether to approve the Anvil Hill project was made as transparently as possible and the proper planning processes were adhered to, especially considering the very controversial nature of the development";

(d) not standing to gain anything personally from the outcome of the proceedings; and

(e) receiving strong support from members of the community in running the case, including various non-governmental organisations opposed to the Anvil Hill Coal Project. 7 Mr Ratcliffe disposes to the fact that legal aid was sought for the proceedings on the basis that it was a public interest environmental matter. The Legal Aid Commission granted legal aid in relation to only one ground, being the ground that the applicant ultimately pressed relating to the former s 75J(3) of the Act and that was the subject of the Court's determination. 8 The applicant also relied on extracts from the Director General's report assessing the application. The Director General's report stated that: "The Department exhibited the Environmental Assessment of the project for 6 weeks from 25 August 2006, and received 2,039 submissions on the proposal: 11 from government authorities and 2,028 submissions from special interest groups and the general public. Over 95% of these submissions objected to the project, raising concerns about a broad array of potential impacts including the greenhouse gas, flora and fauna, noise and blasting, dust, water, Aboriginal heritage and socio-economic impacts"(p ii). 9 The applicant submitted that the Anvil Hill Coal Project will have a significant impact on the environment, including the area zoned for environment protection. This was evident from the Director General's report which stated: "This assessment has found that the project would have a number of adverse environmental impacts, most notably: the clearance of 1,304 hectares of native woodland vegetation of some conservation significance; the generation of significant greenhouse gas emissions; and the dislocation and disruption of the local community due to the large number of landowners (36 including 6 blocks of vacant land) that would be significantly affected due to the noise, blast and dust emissions of the project" (p ii). 10 In the alternative, the applicant submits that if an order for costs be made by the Court, it should be made in favour of one but not both of the respondents. The applicant submits it was open for either respondent to file a submitting appearance. The approach of the respondents to the issue in the proceedings was in like terms and the respondents did not have separate interests to protect in their approach to the issue. 11 The Minister for Planning submits that neither of the circumstances relied upon by the applicant have been made out in this case. The Minister submits:

(a) The applicant's evidence discloses that the proceedings were commenced by reason of personal concerns, and not on behalf of community or public interest organisations;

(b) The applicant's concerns that Part 3A of the Act gives the Minister too much discretion is not a sound basis for any judicial review proceedings, let alone public interest litigation;

(c) The mere fact that the proceedings sought to test whether the approval was granted lawfully is insufficient to give the proceedings a distinctive public interest character - that is the basis of all judicial review proceedings;

(d) The applicant's evidence does not demonstrate that there was a high level of public scrutiny and interest in the issue litigated in the dispute. The statement that the applicant received strong support from members of the community in running the case fall short of demonstrating public interest in the particular issue being litigated;

(e) Even if there is a public interest in human-induced climate change and the political question of whether new coal mines should be approved, the ground of challenge ultimately pursued in the proceedings did not involve these broader issues or vindicate this public interest. The applicant abandoned the other grounds which did raise issues concerning the assessment of greenhouse gas emissions in the approval process;

(f) The grant of legal aid to the applicant to pursue the one ground relating to the former s 75J(3) of the Act is not of assistance, first, because s 42 of the Legal Aid Commission Act 1979 requires the Court to determine whether to make an order as to costs in respect of a legally assisted person as if the person were not legally assisted, and secondly, because it is a matter for the Court to determine whether the proceedings bear the relevant public interest characteristics and cannot defer to the views of the Legal Aid Commission on this question;

(g) The issue pursed by the applicant was not one of general public importance having practical implications beyond the case. The case turned on the construction of s 75J(3) of the Act as it applied at the time of the approval on 7 June 2007. One and a half months later, on 20 July 2007, amendments effected by the Environmental Planning Legislation Amendment Act 2006, assented to 4 December 2006, came into force. This substituted a completely different subs(3) in s 75J. The construction of the former s 75J(3) tested in these proceedings has no wider or enduring utility in terms of the general administration of environment and planning laws or in construction of the current s 75J(3). This stands in contrast to cases such as Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 621-622; Plumb v Penrith City Council (2003) 126 LGERA 109 at 112 [17] and Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365 at [16], [21];

(h) The determination of the issue did not resolve novel issues of general importance: Drake-Brockman v The Minister for Planning (No 2) [2007] NSWLEC 777 (19 November 2007) at [12]. 12 In response to the applicant's alternative submission, the Minister submits that it was proper for the Minister to have been an active party. There was no disentitling conduct by not making a submitting appearance. The cases of The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36 and Oshlack v Richmond River Council (1998) 193 CLR 72 at 90 and 126 were distinguishable. 13 Andros Australia Pty Limited adopted the submissions of the Minister in relation to the principal argument of the applicant. In relation to the alternative argument, it relied on affidavit evidence of its solicitor, Mark Brennan, showing the considerable financial obligations on Andros Australia Pty Limited triggered by the Pt 3A approval and the considerable financial benefits that such approval affords Andros Australia Pty Limited. Andros Australia Pty Limited submitted that it had a legitimate entitlement to take an active role in the proceedings. There was no disentitling conduct in not making a submitting appearance. 14 In my opinion, the applicant has not made out a case in the circumstances of this case for departing from the usual order as to costs. My reasons are essentially those given by the Minister and summarised above. In particular:

(a) The only issue in the proceedings was the narrow question of construction of the former s 75J(3) of the Act. All other issues, including those relating to the greenhouse gas emissions of the project, were abandoned. No issues relating to the broader concerns raised by the public and set out in the Director General's report above were raised in the proceedings. The subsection had been amended (effective 20 July 2007) prior to the commencement by the applicant of the proceedings (on 10 September 2007). The new subsection 75J(3) is materially different to the former subsection. Any determination by the Court of the proper construction of the former s 75J(3) can have no enduring or broader benefit to the construction of the current s 75J(3) or more generally.

(b) Proceedings in relation to only that issue were not of concern to the broader community. The broader community may legitimately have had and continue to have concerns in relation to human-induced climate change, the approval of new coal mines, and the approval of the Anvil Hill Coal Mine, but these proceedings, focused as they were only on the narrow ground of construction of the former s 75J(3) of the Act, were not a vehicle for those legitimate concerns to be litigated. There was no public interest in the issue litigated in the proceedings. 15 The applicant also has not established that it would be proper for the Court to order costs in favour of only one and not both respondents. The Class 4 application sought relief against both respondents: a declaration that the approval granted by the Minister was invalid and an order setting the approval aside, and an order restraining the second respondent (who later became Andros Australia Pty Limited) from acting on the approval. Each respondent had a legitimate interest in defending the proceedings - the Minister in defending the exercise of his power to approve and the construction of the former s 75J(3) of the Act and Andros Australia Pty Limited in defending the validity of the approval which afforded considerable financial benefits to it and the injunctive order sought against it. 16 Accordingly, I order the applicant to pay the respondents' costs of the proceedings (other than those subject to the separate order made on 7 December 2007), as agreed or assessed. **********

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