MINISTER FOR URBAN AFFAIRS AND PLANNING v ROSEMOUNT

The Court delivered its reasons for judgment at the request of the Minister notwithstanding that the Minister had on 6 June 1996 introduced into the Parliament, and there was subsequently passed the State Environmental Planning (Permissible Mining) Act 1996 (No 27 of 1996) assented to on 21 June 1996 which effectively reversed the decision of Stein J and declared valid both SEPP 45 and the Bengalla development consent. The legislation rendered the decision of the Court redundant and effectively negated any prospect that Rosemount had of challenging the development by appeal to the High Court should this Court, as it subsequently did, reverse Stein J's decision. Remaining outstanding is the question of costs.

Subsequent to Stein J's decision on 6 March 1996, an appeal was lodged by the Minister, supported by Bengalla, and expedition of that appeal was sought. The basis of the successful application for expedition was that, if Bengalla could show that prior to 1 July 1996 "substantial commitment" to the mining project's completion had occurred, and could satisfy other requirements, there was a prospect Bengalla could receive a development allowance pursuant to the Commonwealth Development Allowance Authority Act 1992 of approximately $30 million.

It was argued that such "substantial commitment" could not be shown whilst uncertainty regarding the validity of the development consent remained because Bengalla would not commit itself to significant expenditures whilst such uncertainty remained. Accordingly Clarke JA on 25 March 1996 granted expedition, having recited the necessity for the court to deliver its judgment on appeal prior to 1 July 1996, and implicitly, some time prior to that date to enable Bengalla, were it and the Minister successful on appeal, to commit itself to the expenditure and thus satisfy the necessary criteria to retain the prospect of obtaining the development allowance.

By 6 June 1996 this Court had not delivered judgment. In those circumstances the Minister introduced the validating bill to which I have referred. The Minister said: "The bill aims to validate State environmental planning policies 45 - Permissibility of Mining - as gazetted on 4 August 1995. The bill will also

validate the consent granted to the Bengalla Mining Company for the development of an open-cut coal mine near Muswellbrook... The bill is necessary as a consequence of a decision of the Land and Environment Court which is currently the subject of an appeal. However, by introducing this bill the Government intends to let Parliament decide the future of State environmental planning policy 45, avoiding long delays and future appeals and additional unnecessary costs and uncertainty... It is now time to bring the years of conflict and uncertainty to an end. It is time to recognise that the only way that the dispute over the Bengalla mine will ever end is for the Parliament to make a decision one way or the other. The representatives of the people of New South Wales must now decide."!

The Act made no provision regarding costs of the litigation. Rosemount has contended that the Minister should be responsible for the costs of all parties of the proceedings before Stein J and on appeal or, alternatively, each of the parties should bear its own costs of the trial and the appeal. The Minister and Bengalla have each contended that Rosemount should pay their costs of the trial and the appeal, and in addition, Bengalla has sought costs on an indemnity basis in respect of one issue.

Rosemount was unsuccessful on appeal. Accordingly, the usual order would be that it pay the Minister's and Bengalla's costs of the trial and of the appeal but that it have, if qualified, a certificate under the Suitors Fund Act in respect of costs of the appeal. It has argued that such usual order should be departed from in the exceptional circumstances of this case. The matter is said to be exceptional for two reasons. First, the act rendered both the decision of Stein J, and of this Court otiose. It removed any prospect of obtaining leave to appeal to the High Court. Second, the reason this Court was persuaded to deliver its reasons for judgment, although they were otiose in light of the prior enactment, was because of the Minister's interest in having this Court's view on the approach taken by Stein J to the validity of SEPP 45 because of its relevance to other unrelated existing or prospective litigation.

Regarding the first of these submissions, it is tempting to speculate that, had the Minister and Bengalla been unsuccessful before this Court, and on any appeal if leave to the High Court had been granted, the Minister would nonetheless have introduced an act similar to the State Environmental Planning (Permissible Mining! Act 1996. There is significant support for the view that he would have introduced such a bill because of the Government's view of the importance to the State of the Bengalla development. Had that occurred, the whole litigation would have been a wasted exercise. However, that is speculation and is not a permissible approach for this Court to take. All that this Court can act upon is the knowledge that the Minister was content to seek to sustain SEPP 45 and the development consent by having this Court reverse the decision of Stein J provided such an order could be obtained in adequate time prior to | July 1996. When that was not achieved the legislation was introduced. It follows that I do not think this Court can approach the question of costs of the trial or of the appeal upon the basis that irrespective of the outcome of that litigation, the Minister would have ensured that SEPP 45 and the development consent were validated. Accordingly, in my view, the first basis argued fails.

1. Hansard, Legislative Assembly, 6 June 1996, at 2700-2701.

WRMISTER FOR URBAN AFFAIRS AND PLANNING v ROSEMOUNT ESTATES PTY LTB (Sheller JA)

The second basis is irrelevant to the question of costs. The reasons which persuaded this Court to deliver its judgment did not affect costs, all of which had by then been incurred by all parties. Indeed, it was necessary to deliver reasons in order to permit the parties to address the outstanding issue of costs.

It follows in my opinion that the first and second respondents have not been successful in establishing that the circumstances of this case are so unusual as to justify a departure from the usual rule concerning costs.

I am not persuaded that any special order for costs should be made in favour of Bengalla regarding the issue litigated before Stein J, and this Court regarding whether the development application was invalid because the environmental impact statement was not a proper statement. The argument was that because that issue had been abandoned in proceedings before Wardell J where it could have been litigated, principles enunciated in Melbourne Port Authority v Anshun Pty Ltd? should have prevented the matter being raised before Stein J and this Court. I am not at all persuaded that it would have been appropriate for that matter to be determined before Wardell J where the issue being determined was whether the first report constituted a report for the purposes of s119 and s101 of the Act. Nor am I persuaded that it was not permissible for Rosemount to raise the issue in the proceedings before Stein J.

In my opinion the appropriate order is that the first and second respondents pay the costs of the appellant and the third respondent of the proceedings before Stein J and before this Court but have, if qualified, a certificate under the Suitors Fund Act in respect of the costs of the appeal.

Handley JA I agree. I would merely add that in the unusual circumstances of this case it seems to me practically inevitable that the costs of the trial and the appeal should follow the result that would have ensued if the legislature had not intervened to pass the special act.

Sheller JA I agree with the orders proposed by Mr Justice Cole for the reasons that he has given.

The first and second respondents to pay the costs of the appellant and the third respondent of the proceedings before Stein J and before this Court but have, if qualified, a certificate under the Suitors Fund Act in respect of the costs of the appeal.

Counsel for the appellant: K Mason QC/A Galasso Solicitors for the appellant: C Hanson (DUA and Planning)

Counsel for the first and second respondents: PD McClellan QC/BJ Preston/JE Robson/JE Griffiths

Solicitors for the first and second respondents: Hallett and Associates Counsel for the third respondent: Webster/NE Abadee

Solicitors for the third respondent: Fitzgerald White Talbot