Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd

HVEC's contention: nature of Secretary's role

1. The primary judge rejected each basis of challenge articulated by the Council. In relation to the first matter, he concluded that condition 42 did not identify objective criteria satisfaction of which could only finally be determined by the Court. Rather, he concluded that approval of the Strategy depended only upon the Secretary being satisfied that it complied with the requirements of condition 42 and Table 14.
2. It was not in dispute that the Secretary had indicated her state of satisfaction as to those matters. The judge further held that she could not be said to have disregarded the mandatory criteria informing that state of satisfaction. Nor could it be said that her state of satisfaction was manifestly unreasonable, so as to be legally ineffective.
3. In this Court, HVEC sought to uphold that result on a further basis, namely that "the Secretary's function in respect of, and her approval of, the Rehabilitation Strategy did not involve the exercise of a statutory power or discretion, whether delegated … or otherwise", so that there were no relevant criteria the objective satisfaction of which enlivened the exercise of a statutory power or discretion. As further articulated in the course of submissions, HVEC said the Secretary was exercising non-statutory executive power. In so far as criteria or standards were specified in the terms of the Approval, it was the Secretary's satisfaction as to those matters which was necessary for approval of the Strategy. That state of satisfaction was not unreviewable, but the basis of review was limited to manifest unreasonableness.
4. This submission in effect adopted the reasoning of Gibbs J in Buck v Bavone (albeit dealing with a power confirmed by statute): [4] "It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached."
5. Because the Council sought to challenge the Secretary's approval of the Strategy, the current Secretary was joined as a party to the proceedings. The Secretary played an active role, generally in support of the company's submissions, but in this respect contended that the power being exercised in approving the Strategy was, in effect, a power exercised under statutory authority, at the behest of the Commission. The Secretary's position was, therefore, that although there were no objective criteria forming preconditions to the exercise of the power; the power was reviewable on the basis noted above, but no legal error or manifest unreasonableness was demonstrated.
6. It is convenient to consider first the correctness of the issue raised by HVEC's notice of contention.
7. The proposition that the Secretary was exercising a non-statutory executive power relied upon unexplored assumptions. For example, there was a real question whether, and if so to what extent, such powers (sometimes referred to as part of the executive prerogative) survived under the statutory scheme for the regulation of land use in New South Wales. A similar issue arose in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act, [5] but in that case the question was limited to the lawful occupation of Crown lands for the purposes of the Aboriginal Land Rights Act 1983 (NSW), s 36(1). It is not necessary in the present circumstances to consider, for example, the vesting of "the entire Management and Control of the waste lands belonging to the Crown … in the Legislature of the said Colony", pursuant to the New South Wales Constitution Act 1855 (Imp), s 2, referred to in the joint judgment in Berrima Gaol land claim. [6] Rather, this case is better approached on the basis outlined in the joint reasons of the majority in Forrest & Forrest Pty Ltd v Wilson: [7] "[64] … where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. When a statute that provides for the disposition of interests in the resources of a State 'prescribes a mode of exercise of the statutory power, that mode must be followed and observed'. [8] The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise. [9] [65] This approach to statutory construction had its origin in colonial times in legislation which vested the disposition of land not already disposed of by the Crown in the legislatures of the Australian colonies. [10] Nothing said in Project Blue Sky diminished the force of the authorities which support this approach. Adherence to this approach supports parliamentary control of the disposition of lands held by the Crown in right of the State. It gives effect to an abiding appreciation that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be confident that such a state of affairs was not intended by the Act."
8. It is correct to say that this case does not directly involve "the disposition of interests in the resources of a State"; however, it does involve the working out of a set of conditions imposed under a statutory scheme governing such a disposition. Applying these principles by analogy to the present case, it is apparent that the requirement for project approval for the use of the whole project area (apparently in the order of 60sq kms) is required by statute and that the decision-maker is identified under the statute. As noted above, the decision-maker with respect to approvals under Pt 3A of the Planning Act was the Minister, but the relevant powers were delegated by the Minister to the Commission.
9. No doubt the Commission may impose conditions in granting approval for a project or a modification of a project, but that power is not unfettered. Its limitations will depend upon the scope, purpose and subject matter of the power. However, what is important for present purposes is the requirement that the act of approving or refusing approval was vested in the Commission. No doubt it could require that the miner undertake progressive rehabilitation of the land subject to extraction of coal, and that rehabilitation occur in accordance with a strategy. Such conditions were undoubtedly within the power of the Commission. Further, it was undoubtedly appropriate for the Commission to fix the matters to be addressed in such a strategy and the standards to be reached. In effect, the grant of approval was contingent upon a conforming rehabilitation strategy being produced.
10. The Commission could also have reserved to itself the power to determine satisfaction of the contingency; that would be completing the process of approval. The question is whether, and to what extent, the Commission could empower a third party to determine that satisfaction. Further, if such a course were available, on what category of persons could the power be conferred?
11. The Council did not plead, nor contend in the Land and Environment Court, that the approach adopted by the Commission involved an invalid delegation of authority to a departmental officer who did not herself have delegated authority from the Minister to determine a Pt 3A application. Nor was it submitted that the Secretary could not in turn effectively delegate the formation of her state of satisfaction to another officer in her department. No such case was presented before the Land and Environment Court. As HVEC correctly submitted, such a claim would have raised important issues which were simply not addressed in the evidence or in argument. It would have been necessary to consider, if there were merit in such an assertion of invalidity, whether some part of the approval could be severed. Again, that issue had not been raised nor debated below.
12. Without addressing questions of invalidity, it is necessary to characterise the role played by the Secretary, whether by way of delegation or agency or otherwise. That is because it is necessary to determine the issue raised by HVEC on its notice of contention, that is whether the function being exercised by the Secretary is ultimately referrable to a statutory power. However, even those arguments were not fully explored. For example, there was little material before the Court as to how the Commission operated, the extent to which it relied upon officers within the Department of Planning and Environment, and the extent, if at all, to which it relied upon outside agencies. (While the Secretary prepared an Environmental Assessment Report in May 2014, purportedly under s 75W of the Planning Act (which required that the Secretary notify the proponent of her "environmental assessment requirements"), the recommended Notice of Modification was not attached at Appendix A, although it was probably the document separately executed on behalf of the PAC.)
13. The Planning Act, in dealing with project approvals, envisaged a four step process which may be categorised as requiring (i) an application; (ii) consideration by the decision-maker; (iii) grant or refusal of the application, and if granting the application, determination of appropriate conditions, and (iv) enforcement of compliance with conditions of approval. The approval of a mine in a specified area with annual extraction limits readily falls within such a schema; however, rehabilitation is a process and, especially where it occurs progressively over time, may well depend upon environmental conditions and, for example, the success or failure of early efforts in determining what to do at a later stage. It may require monitoring of outcomes. The complexity of the task requires some form of agency to assist the decision-maker. However, the functions of the agent must be understood as an inherent part of the formulation and working through of appropriate conditions. Thus, the function of the agent (assuming the validity of his or her appointment) is an element of the statutory function of granting approval for modification of the project. At least in that sense, it is not something separate from the statutory scheme, although the statutory scheme is itself worked out through the creation of the instrument constituted by the conditional approval.
14. The activity of the Secretary must be reviewable in accordance with the principles established in such cases as Hetton Bellbird Collieries, [11] Buck v Bavone and Eshetu v Minister for Immigration. [12] If the instrument by which the agency is created imposes an objective requirement, absent which the agent's authority to act is not engaged, there will be a question as to whether that objective criterion is to be addressed by the Commission, or by a court. In this case, no party suggested that the Commission had reserved to itself a role in that respect. On the other hand, the structure by which the conditions created an authority, and then conferred it on the Secretary, make it extremely unlikely that the Commission was intending to create some objective criterion, satisfaction of which must ultimately depend upon a decision of a court. As explained below, the Approval should not be read as having that effect.

Relevant principles

1. To the extent that it is appropriate to apply to the terms of the Approval the conventional approach to determining whether a statute has identified a mandatory precondition to the exercise of a power (which may be doubted), the analysis does not favour the imposition of objectively verifiable criteria.
2. The process of characterisation was helpfully articulated by Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd [13] as involving two considerations to be addressed by reference to the text of the statute. The first is to ask whether the factor in question is "an essential preliminary to the decision-making process", as distinguished from "a fact to be adjudicated upon in the course of the inquiry". [14] It is more likely that a fact will be jurisdictional if it can be characterised as "extrinsic or ancillary or preliminary" to factors informing the exercise of the power. [15] This consideration turns on the structure of the provision. Thus, where a consent authority has power to approve or withhold approval from a proposed development of a particular kind, whether it in fact qualifies as a development of the specified kind may well be a jurisdictional fact.
3. Secondly, the nature of the criterion may be important. Some matters may readily be determinable objectively by reference to the evidence; others will involve an evaluative judgment. As explained by Spigelman CJ in Pallas Newco: "[56] Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction."
4. Where an evaluative judgment is involved, it is relevant to consider whether the necessary assessment falls within the particular expertise of the decision-maker: if it does, the matter is less likely to be jurisdictional. [16]

Application of principles

1. The Council argued that several factors favoured reading compliance with the standards in Table 14 as an essential precondition to the exercise of power by the Secretary. They may be identified as five discrete submissions.
2. First, the Council relied upon the structure of the provisions in the Approval dealing with rehabilitation. Thus, the statement of "Rehabilitation Objectives" in Table 14 was separate from the means by which the objectives were to be effected. Indeed, the Table was expressed as setting out factors which were to govern the conduct of the company, both in preparing a rehabilitation strategy (condition 42) and undertaking rehabilitation of the site (condition 41A).
3. Secondly, because assessment of the separate functions was to be carried out by different authorities (the Secretary with respect to condition 42 and the Division of Resources and Energy within the Department of Trade with respect to condition 41A) the proper construction of the rehabilitation objectives, and their application, the Council submitted, must have depended upon a fixed set of standards separate from the opinions of the respective decision-makers.
4. Thirdly, the structure of condition 42, which lay at the heart of the appellant's case, separated the condition into two parts. The first sentence required the preparation of a revised Rehabilitation Strategy to the satisfaction of the Secretary; the second sentence specified requirements with which the Strategy was to comply. One of the mandatory requirements depended on the operation of Table 14: condition 42(d). Thus, it was submitted, the requirements of the contents of the Strategy were identified separately from the conferral of power on the Secretary.
5. Fourthly, because the Strategy was to be prepared by the company, by reference to Table 14, compliance with the Table might be characterised as preliminary or antecedent to the exercise of approval by the Secretary.
6. Fifthly, and by way of contrast, where in other conditions the Approval set out the standards to govern the satisfaction of the Secretary a different formula was adopted. An illustration was to be found with respect to visual amenity and lighting, in condition 52, which followed an alternative format: "52. The Proponent shall: (a) implement all reasonable and feasible measures to mitigate visual and off-site lighting impacts of the project; (b) ensure no outdoor lights shine above the horizontal; and (c) ensure that all external lighting associated with the project complies with relevant Australian Standards …, to the satisfaction of the Secretary."
7. The relevance of each of these considerations may be accepted; however, even taken in combination, they do not establish that Table 14 contained criteria compliance with which was an essential precondition to the validity of the Strategy.
8. While it is true that two different grammatical structures were to be found through the various conditions in the Approval, it is far less clear that any substantive difference in legal effect was intended. The formula adopted in condition 42 commonly applied where a plan, strategy or other document of a similar kind was required in order to fix the standards by which the company was required to take particular action. By contrast, where the condition simply imposed an obligation on the company to take particular action on the ground, the terminology followed the structure of condition 52. The nature of the activities involved in each case do not provide a basis for treating the differing formulae as achieving a different legal outcome as to the matters about which the Secretary was required to be satisfied.
9. Focusing on the terms of condition 42, the second sentence required that "[t]his strategy must … include detailed rehabilitation objectives for the site that comply with and build on the objectives in Table 14." An "objective" is not a precise standard which may readily be assessed as a preliminary to the assessment of the content of the rehabilitation strategy. Whether the strategy included and built upon the rehabilitation objectives was precisely the matter which the Secretary was required to assess. It could not be seen as a preliminary matter which the Secretary would address as relevant to the engagement of his or her function. Further, although some of the rehabilitation objectives were identified in precise terms, such as the rehabilitation of at least 33 hectares of agricultural land, and the restoration of at least 2,642 hectares of self-sustaining woodland, others were stated at a high level of abstraction.
10. Finally, although it was true that a degree of compliance with Table 14 was required both in preparing the Strategy and in actually rehabilitating the site, and each was to be undertaken to the satisfaction of a different authority, the lack of precision in the statement of objectives militated against treating the Table as setting out standards which could be identified abstractly, for the purpose of assessing the extent to which the Strategy and the actual rehabilitation complied with the Table. As the company noted, the requirement that it comply with the Strategy also depended upon compliance with any reasonable requirements of the Secretary arising from the Strategy. [17]

Validity of Secretary's state of satisfaction

1. On the basis that the operation of the Strategy depended on a state of satisfaction of the Secretary, the Council contended that her satisfaction as to compliance with the rehabilitation objects in Table 14 was manifestly unreasonable. Although the Secretary did not provide reasons for her decision approving the Strategy, nor did the Council seek reasons, the letter of 7 June 2017, with an attachment specifying changes to satisfy seven criteria, was available to be considered.
2. The challenges to the Secretary's state of satisfaction must be rejected. Given the nature of the function being exercised by the Secretary, and the indeterminate criteria to be applied, the Council did not establish that the outcome of the review was manifestly unreasonable.

Entitlement of Secretary to costs

1. The Council was required to pay the costs of both HVEC and the Secretary of the trial. [18] Had the Council succeeded in its appeal, it would have been necessary to reconsider, and probably set aside, the costs orders made by the trial judge. In the event that it failed on its substantive arguments, the Council raised a separate ground challenging the order of the trial judge that it pay the costs of the Secretary of the trial. The Secretary contended that this aspect of the appeal was against "an order or decision as to costs" for the purposes of s 58(3)(c) of the Land and Environment Court Act 1979 (NSW) and required leave. Against the possibility that leave might be required, the Council filed a summons seeking leave to appeal. It is convenient to deal with the question of leave first.

Leave requirement

1. If read in its broadest sense, s 58(3)(c) requires an application for leave to appeal against any order or decision as to costs. Because such orders are frequently made against an unsuccessful party, on its broadest reading, the provision would require an application for leave in all such cases, or the adverse costs order would stand, despite the appellant's success in overturning the substantive order. That position was not adopted by the Secretary, nor would it have any support from authority in this Court. [19] The practical consequence of such a construction would be to require that an appellant file a separate summons seeking leave to appeal in every case where it had been the subject of an adverse costs order. That would impose a procedural burden on the attainment of complete justice in a single proceeding which is so irrational that it would require the clearest words to be accepted. It would be undermine the overriding purpose of quick, cheap and just procedures enshrined in Pt 6 of the Civil Procedure Act 2005 (NSW). The present language does not support such a construction.
2. The narrowest construction of the provision would apply it only to cases where there was no challenge to any part of the substantive orders, but only to a costs order. That reading is plausible, but is not the present case.
3. There are two intermediate positions. The broader position, for which the Secretary contended, is that leave is required whenever there is a standalone challenge to the costs order; that is, where the challenge to the costs order is not dependent upon success in the appeal. The alternative construction, for which the Council contended, is that whenever there is a non-colourable appeal against a substantive order, the jurisdiction of the court with respect to costs is engaged and there is no requirement for leave to appeal, even if the challenge to the costs order is not solely dependent upon the outcome of the substantive appeal.
4. The difficulty with the choice between these two intermediate positions is that there is no language in the statutory provision which provides a basis for such a choice. Further, although it may be said that interference with a costs order consequential upon a successful appeal will ordinarily follow as of course, there is no right to such an order; the consequential relief nevertheless requires the exercise of discretionary power by the court. The court might not interfere, for example, if the appeal were only partly successful. Would that be an outcome in which leave would be required?
5. It may well be the case in respect of an unsuccessful appeal that this Court will need to consider similar issues in determining the appropriate costs orders in this Court to those it would address in considering the correctness of the costs order in the court below. That, as a matter of fact, is this case.
6. Finally, careful semantic analysis of costs orders, in common cases, may provide no ready resolution of the point of construction. On some occasions, separate orders are made with respect to costs, at a time subsequent to the orders disposing of the substantive questions before the court; in other cases, a separate order may be made, but at the same time as orders disposing of the substantive questions; on yet other occasions, there may be no separate orders, but, for example, a single order in the form "application dismissed with costs". If a semantic analysis of the provision providing for appeals from costs orders depended on the form of the order, the results would tend to be arbitrary. Such an approach should not be adopted.
7. These considerations favour the view that leave is required to challenge a costs order where there is no non-colourable appeal with respect to an order from which an appeal lies as of right. The principled basis for that conclusion is that when a notice of appeal confers jurisdiction on this Court, it will confer jurisdiction with respect to all orders made in the court below. It would be manifestly inconvenient if the jurisdiction conferred were contingent, but only in some circumstances.
8. Although the reasoning may not be identical, that conclusion would be consistent with there being no requirement for leave to appeal against an interlocutory decision of the court (such as with respect to its own jurisdiction, or as to admissibility of evidence), where a final decision was under appeal and the challenge to the interlocutory decision was a ground for challenging the final decision. [20]
9. It remains to inquire whether there is authority binding on this Court which is inconsistent with that conclusion. The Secretary relied upon a number of cases with respect to the operation of the Land and Environment Court Act, in none of which does the issue appear to have been fully debated. In McGovern v Ku-ring-gai Council, [21] the following appeared in my judgment: "[213] Separately from their challenge to the substantive judgment below, the appellants also sought leave to appeal from a second judgment of the Land and Environment Court with respect to costs …. Leave to appeal was required pursuant to the Land and Environment Court Act 1979, s 58(3)(c)." That was all that was said: there is no hint that any question arose as to the need for leave - it was simply assumed.
10. Similar statements appear in Peters v Manly Municipal Council. [22] In Arinson Pty Ltd v City of Canada Bay Council, [23] in identifying the issues before the Court, J C Campbell AJA stated: "The present appeal also seeks to challenge the order for costs, but only if the appeal otherwise succeeds. The appellants recognise that, pursuant to s 58(3)…, leave of this Court would be required to challenge the order concerning costs. I have concluded that the appeal should be dismissed, so the question of costs does not arise." Self-evidently, this statement relied on a concession and resolved nothing.
11. The only case in this Court in which the issue has been squarely addressed, though not resolved, was Dillon v Gosford City Council. [24] The reasoning in that case commenced with the following proposition: "[53] It is commonplace to find a requirement for leave in respect of appeals against orders as to costs: see, eg, Supreme Court Act 1970 (NSW), s 101(2)(c); District Court Act 1973 (NSW), s 127(2)(b). In relation to appeals within the Supreme Court and from the District Court, the Court has followed English authority to the effect that leave is not required if the appeal contains bona fide grounds relating to issues other than costs; in such a case, the appeal is not, in the language of the Supreme Court Act, an appeal from 'a judgment given or order made in proceedings in the Court ... as to costs only which are in the discretion of the Court': Wheeler v Somerfield [1966] 2 QB 94 at 106 (Lord Denning MR) and 107 (Harman LJ) (Winn LJ agreeing with both)."
12. The reasoning continued: "[56] There are practical considerations which militate in favour of a leave requirement limited to appeals raising a challenge only to a costs order. Were it otherwise, an appellant with an appeal as of right in respect of substantive issues, would be required to seek leave to appeal in respect of the costs order if the latter challenge were not merely contingent upon the outcome of the challenge to the substantive orders; there would be little point in a separate hearing of the leave application. Indeed, the appellant would usually not need to pursue an independent challenge to the costs order unless all other grounds failed."
13. The reasons noted that there were relevant semantic and jurisdictional differences between s 57 and the provisions governing appeals from the District Court and a single judge of the Supreme Court. The relevant semantic differences were that the Supreme Court Act 1970 (NSW), s 101(2)(c), refers to "a judgment given or order made in proceedings in the Court … as to costs only which are in the discretion of the Court", and the District Court Act 1973 (NSW), s 127(2)(b), to "a judgment or order as to costs only". [25] The Court also noted that its practice not to require leave where there is a challenge to substantive orders as well as the costs order may not be in conformity with the approach adopted in other jurisdictions. [26] The conclusion in Dillon was that "the preferable course is to follow the existing line of authority in this Court in respect of s 101(2)(c) of the Supreme Court Act and apply it in relation to s 57(4) of the Land and Environment Court Act. The result is that no leave is required."
14. The point of distinction between Dillon and the present case is that Dillon was concerned with a class 3 appeal, limited to a question of law; s 58 is not so limited in its terms, although the judicial review functions under s 20(2) of the Land and Environment Court Act will be analogous in practice. (Clearly the section cannot be construed on the basis of part only of its operation.) More importantly, the terms of the leave requirement with respect to costs is in the same form in each section.
15. By comparison with other statutes, the Secretary noted that the absence of the word "only" provided a basis for distinguishing appeals from the Land and Environment Court from appeals from the District Court and a single judge of the Supreme Court. Other authorities in this Court relying upon that point of distinction include World Best Holdings v Sarker, [27] Haddad v Chief Commissioner of State Revenue. [28] Reference by way of distinction was also made to Etna v Arif in the Victorian Court of Appeal. [29]
16. Arguments based on a comparison of different statutory provisions assume that different wording was the result of a considered decision by the legislature (or more realistically Parliamentary counsel) to differentiate between different types of appeal. However, there is little basis for such an assumption, in the absence of an inference which can be drawn from legislative history. Counsel for the Secretary noted that ss 57 and 58, as originally enacted, required leave with respect to "an order or decision as to costs only". In 2002 both provisions were restructured in a way which gave each category of order or decision requiring leave a separate paragraph and by omitting the word "only" after "costs". [30] The effect, the Secretary submitted, was to expand the orders as to costs which required leave.
17. This conclusion may be doubted. Schedule 3 of the 2002 Amendment Act contained seven items amending provisions providing for appeals to the Court of Appeal. One of those was the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which was amended by adding a further paragraph to s 353(4), to provide for a requirement of leave with respect to a decision made by consent. However, s 353(4)(b) which provided for an appeal "from a decision as to costs only" was not amended to delete the word "only". Section 353, inserted in 2001, adopted the structure of separate paragraphs for each category of decision for which leave was required. The same approach was adopted with respect to the amendment of the (now repealed) Compensation Court Act 1984 (NSW), s 32(4). A similar paragraph was added, leaving unaffected the requirement for leave from an appeal from "a decision as to costs only": s 32(4)(b). In short, where there was already provision for leave with respect to a costs decision in a separate paragraph, the language was not varied; the new formula being adopted only where a new provision was made, sorting the possible heads into categories, or wholly adding a new provision, as with the Local Courts (Civil Claims) Act 1970 (NSW). Rather than infer an intention to change the scope of the requirement for leave with respect to costs decisions, the better view is that the 2002 amendments considered the new formula as involving no material difference from the old formula. There was no consistent policy to remove the word "only".
18. The preferable course is for this Court to focus on the particular statutory provision, given the nature of the jurisdiction being conferred and the practical consequences of different readings of the provision. There being no authority against the approach identified above, it should properly be adopted. There being a non-colourable appeal giving rise to issues attracting the jurisdiction of this Court, leave was not required and the application for leave to appeal was unnecessary.

Proper role of Secretary

1. The Council submitted that, (i) given the role of the Secretary as a decision-maker, it was necessary that she be joined in proceedings by way of judicial review, so as to be bound by the outcome, but (ii) it was not appropriate for the Secretary to take an adversarial role in those proceedings, either at trial or on appeal. The underlying principle was stated by the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [31] in the following passage: "Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the tribunal."
2. The Secretary submitted that the principle said nothing about the appropriate order as to costs in circumstances where a public authority with a decision-making role took part in proceedings. However, that proposition was wrong in principle and as a matter of authority. In Oshlack v Richmond River Council, [32] the appellant had brought proceedings in the Land and Environment Court under s 123 of the Planning Act, seeking to set aside a consent to a development application granted by the respondent Council. The developer, which had been a party to the proceedings in the Land and Environment Court, played no part in the subsequent proceedings which concerned the refusal of the trial judge to make an order for costs in favour of the Council, having refused the substantive relief sought by the appellant. The joint reasons of Gaudron and Gummow JJ commenced their conclusions with the following passage: "[46] One submission by the Council may be discounted immediately. The Council urged that the imposition upon it and other councils of the costs 'of successfully defending litigation brought against them in the [Court] might impose a very substantial financial burden' and result in expenditure or loss of public moneys, inevitably to be passed on to ratepayers through an increase in rates or by a reduction in services provided to ratepayers. We have referred earlier in these reasons to the constitution of the action tried by Stein J. In a significant number of such litigious disputes, it will, in accordance with the reasoning in R v Australian Broadcasting Tribunal; Ex parte Hardiman, [33] be entirely appropriate for, if not incumbent upon, the local government body not to assume the position of a protagonist and to avoid incurring substantial costs. The position of protagonist will be filled by the party against which injunctive relief is sought and which is the real contradictor in respect of the application for declaratory relief. [47] Nor should the Court accept the further submission by the Council, with respect to the significance of s 123 of the EPA Act, that '[t]he extension of standing beyond the common law rules does not indicate any legislative intention to vary the ordinary costs rule'. It is, as indicated earlier in these reasons, not a question of fixing upon any hardened 'rule' derived from other descendants of the Judicature legislation and asking whether, in proceedings under s 123 of the EPA Act, the powers of the Court with respect to costs which are conferred by s 69 of the Court Act indicate a legislative intention to vary that 'rule'. … [49] The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ: [34] 'Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area.'"
3. To similar effect, the other member of the majority, Kirby J stated: "[141] Furthermore, in many cases it will be unnecessary, and would be inappropriate, for councils to incur significant legal costs in defending 'public interest' litigation in the Land and Environment Court. It is true that sometimes, as a planning authority with perspectives that may go beyond those of the protagonists, councils may have a legitimate interest to defend which justifies their participation in the litigation. However, it would often be appropriate for them to submit to the orders of the court. The dispute would then go forward as one between an applicant invoking the 'public interest' and the body against which relief is sought."
4. Once it is understood that the role of a public authority or officer whose decision is under challenge is not that of a protagonist but is limited to providing assistance to the court as to relevant statutory powers and procedures, it becomes apparent that there is no relevant "event" on which a costs order would follow. The fact that the Secretary sought costs and went to some lengths to defend the costs order in this Court on appeal, supports an inference that she (now he) was acting as an adversary of the Council. That was an inappropriate role. Further, a costs order should only have been made on the basis that the Secretary followed the proper and more limited role. On that basis, the position of the Secretary was more closely aligned to that of amicus curiae; consistent with the role of an amicus, the usual order would be that the amicus neither receives nor pays costs. The same will usually be true of an intervener, although an intervener who extends the length and scope of the proceeding may be called upon to pay the additional costs incurred by the parties, or at least the successful party.
5. On this approach, it is not necessary to undertake a full analysis of the submissions and evidence proffered at trial; nevertheless, it is appropriate to make a number of observations as to what happened at trial. Those observations may be premised by an acknowledgment that both in the Land and Environment Court and in this Court counsel for the Secretary stated that he was complying with the strictures set out in Hardiman.
6. Following that explanation, counsel for the Secretary opened his case at trial before counsel for the first respondent, HVEC. He stated: [35] "By way of opening, what I propose to do is just provide your Honour with a little bit more context than came out in the applicant's opening and that is specifically because the conditions under consideration in this case were imposed by way of modification and I propose to take your Honour through both the regulatory and physical context which led up to the conditions that we have in the current project approval." Counsel then took that course: it was not necessarily a neutral presentation, as appeared from what followed.
7. Senior counsel for HVEC followed, stating immediately that he adopted the submissions on behalf of the Secretary and would elaborate on the importance of "context" on the basis that condition 42, "the central condition in the applicant's case cannot, as a legal proposition, as a practical proposition, be understood and its obligations truly understood, without an appreciation of the context of condition 42 in the approval." [36]
8. So far as evidence was concerned, the respondents jointly tendered an agreed statement of facts. In addition, counsel for the Secretary tendered the vast bulk of the documentary evidence. By way of explanation, after noting that there would be thousands of pages of documents, he explained: [37] "Yes, but in a case in which the secretary takes a limited role but nevertheless where the question of reasonableness is raised, the secretary took the view that seeing as she did have a role in these proceedings it was appropriate that she be the party that tendered the documents that were before the decision-maker at the time."
9. The first and second respondents also provided an agreed chronology. [38]
10. Counsel for the Secretary read an affidavit of Timothy Walls, on which he also sought to rely in this Court. The judge noted that, subject to objections, he had read the affidavit and continued: [39] "Just so I understand it, what Mr Walls says is that there are - that says, 'critically' - 13 other mines that have approvals with not dissimilar worded contentions, and to be very colloquial, I was going to say, so what, but I don't mean that in a disrespectful way. KELLY [Counsel for the Secretary]: Yes, well it's relied on for the two purposes, one firstly it's been put against the secretary a number of times in the lead up to today's hearing that the secretary ought not be here as an active party. … KELLY: The affidavit is provided by way of satisfying your Honour that there are exceptional circumstances that justify the secretary's active participation. Secondly, as Mr Lancaster [for HVEC] suggested in his opening yesterday, the question of consequences is relevant to your Honour's interpretation of the consent, and in my submission, this affidavit goes to the consequences of the construction of this consent in that it extends beyond the construction of this consent."
11. The Council objected to the Secretary relying upon Mr Walls' affidavit. In reply, defending the tender of that material, counsel for the Secretary stated: "… we start [from] the proposition that the degree of the Secretary's involvement in these proceedings bears no relationship to any of the relief sought by the applications on the ground set out in the summons apart from costs. … [T]he only one of those facts in issue that could be affected by Mr Wall's affidavit is the question of costs. … [T]he consequences of a breach of the Hardiman principle … will either be an adverse costs order and perhaps adverse comment by the Court and finally perhaps in unusual circumstances or rare circumstances, an order of the kind that now is sought by the applicant in this case, which is a special kind of remittal order which would be based on the conduct of the decision-maker in the proceedings being such that it would suggest that when that decision-maker is called on to make the decision again, if they are, they wouldn't bring an unbiased mind to that."
12. Mr Walls' affidavit of 26 July 2018 had a number of curious features. He stated on information provided to him, that there are "approximately 13 current project approvals applying to coal mines in New South Wales which contain similar conditions to those under review in the present proceedings." He then referred to an annexed spreadsheet listing the project approvals, and attaching copies of each of the similar conditions identified in that spreadsheet.
13. The spreadsheet in fact listed 14 projects, including HVEC's Mt Arthur project, which was presumably excluded from the 13 current project approvals referred to in the affidavit. Of the others, only one, a mine at Mt Owen, included a "rehabilitation strategy" condition in similar terms to cl 42 of the current approval. The others contained clauses similar to cl 41A in the Mt Arthur approval, the construction of which was not in dispute.
14. The pleadings are instructive on this point. In response to the relief claimed in the further amended summons filed by the Council, HVEC stated that "the proceedings should be dismissed with costs." By contrast, the Secretary stated that "the second respondent takes no position on the relief sought", but nevertheless responded to each of the nine substantive pleadings alleging breach of the modified project approval with alternative pleadings as to the operation of the relevant terms and conditions of the approval. Although there were aspects of the Council's pleading to which the Secretary did not respond, generally there was a close conformity between the Secretary's response and that of HVEC, which had been filed three days earlier.

Challenge to costs order in favour of Secretary

1. In the costs judgment below, [40] the primary judge dealt concurrently (no doubt because the applicant's submissions were so presented) with the applicant's submissions as to the liability of the Council to pay costs to both HVEC and the Secretary. He then dealt separately, but first, with Council's liability to pay HVEC's costs. That aspect of the costs judgment is not in issue. Finally, the judge turned to, and dealt succinctly with, the position of the Secretary. In doing so, he made two assumptions which were, in my view, erroneous. The first related to the structure of the costs rules as applicable in the class 4 jurisdiction of the Land and Environment Court. The second was in characterising the role of the Secretary in the litigation.

Relevant cost rules

1. The judge correctly identified the power of the Court to make orders as to costs in s 98(1) of the Civil Procedure Act 2005 (NSW). He further identified correctly, the "general rule" that costs follow the event, as provided in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. [41] The judge then noted the specific provision made in r 4.2 of the Land and Environment Court Rules 2007 (NSW) applicable, pursuant to r 4.1, to the class 4 jurisdiction of the Court. Although the relevant sub-rule is 4.2(1), it is convenient to set out the whole of the rule: 4.2 Proceedings brought in the public interest (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest. (2) The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent's costs if it is satisfied that the proceedings have been brought in the public interest. (3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to: (a) the injunction or order sought by the applicant, or (b) an undertaking offered by the respondent in response to the application, if it is satisfied that the proceedings have been brought in the public interest.
2. This rule had no equivalent at the time that Oshlack v Richmond River Council was litigated. It is a specific local rule, introduced after the UCPR. As the judge correctly noted, the Land and Environment Court Rules prevail over the UCPR to the extent of any inconsistency. That is because the general rule providing for the UCPR to prevail, unless the uniform rules expressly provide otherwise (Civil Procedure Act, s 11) is reversed by UCPR r 1.7 and Sch 2 to the UCPR with respect to identified rules, including r 4.2(1).
3. Accepting that approach, the trial judge appeared to resolve the operation of r 4.2(1) by concluding that these were not proceedings that had been "brought in the public interest." It is unclear how the judge would have addressed the interrelationship of the local rule and the UCPR r 42.1, had it been necessary to do so.

Public interest litigation

1. The characterisation of litigation as brought in the public interest was dealt with by reference to principles articulated by Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2). [42] In that case, the developer of a large residential subdivision sought costs against the Action Group which had unsuccessfully challenged the decision of the consent authority to return to the developer a substantial contribution made under s 94 of the Planning Act for the purpose of construction of roadways. The case preceded the 2007 rules and turned upon an open discretion as to costs then provided in s 69(2) of the Land and Environment Court Act, but since repealed.
2. There are risks in resolving the characterisation of litigation under the present rule by reference to fixed criteria developed for the application of a different statutory provision which contained no express equivalent to the present rule. However, applying the general criteria identified in Engadine, it is difficult to understand how the current litigation could properly be characterised as otherwise than "proceedings brought in the public interest".
3. First, a local government authority acting in the interests of those living within the Council area to protect the general amenity of the area can properly be understood as acting in the public interest. A different view might be taken in relation to proceedings in debt to recover overdue rates from an individual ratepayer, and there may be more difficult questions along the spectrum between these two examples. However, the present proceedings appear to fall squarely at the public interest end of the private/public spectrum.
4. Secondly, the applicant Council sought to enforce public law obligations under a development approval for a major project. No doubt r 4.2 was directed in large part to protecting impecunious individuals or associations which seek to enforce public law obligations under the open standing provisions of the Planning Act, but which face the risks of a crippling adverse costs order if unsuccessful. A similar principle can be seen to underlie a power to decline to order security for costs or an undertaking as to damages, pursuant to r 4.2(2) and (3), where such steps might otherwise be taken in the ordinary course of litigation. Nevertheless, there is no reason to limit the benefit of r 4.2(1) to impecunious individuals against whom costs orders might not be enforceable in any event, to the exclusion of other groups clearly acting in the public interest, such as a local government authority.
5. Thirdly, although the judge referred to the motivation behind the litigation, he did not state why motivation was significant. In Engadine, the question was not posed in the abstract, but "[w]hether the prime motivation of the litigation is to uphold the public interest and the rule of law", referring to Oshlack at [20]. An affirmative answer to that question must support the conclusion that the litigation was brought in the public interest: there was no suggestion that the Council had any other motivation.
6. Finally, a factor favouring a finding that the litigation was brought in the public interest was the absence of any pecuniary interest of the applicant in a positive outcome of the proceedings. Again, that factor militated in favour of the engagement of r 4.2(1). Indeed, none of the factors identified in Engadine suggested otherwise. To those factors may be added the important consideration that both the Council and the Secretary were acting in the public interest, and the significance of the Secretary's role, to which further regard will be paid below.
7. Ultimately, it appears that the trial judge found that the proceedings were not brought in the public interest because "the principles in relation to the proper construction of development consents (and conditions attached thereto) are now well established." [43] While the establishment of a legal principle having broad application may readily be understood as engaging a matter of general public importance, for example, for the purposes of a special leave application under s 35 of the Judiciary Act 1903 (Cth), it is by no means a necessary element of a claim in the Land and Environment Court being brought in the public interest.
8. In my view, there is no reasonable basis to doubt that the Council brought the proceedings in the public interest. It follows that r 4.2(1) was engaged.

Application of r 4.2(1)

1. The effect of engagement of r 4.2(1) requires consideration of its standing in relation to the "general rule" that costs follows the event, over which it will prevail in the event of inconsistency. Rule 4.2(1) does not purport to do more than confer power on the Court to decline to make the usual order against an unsuccessful applicant. It assumes the co-existence of the general rule, but provides a countervailing consideration to its operation, the "general rule" itself not being a binding rule, but rather a principle which will operate "unless it appears to the court that some other order should be made as to the whole or any part of the costs."
2. Although not decisive, there is some irony in the fact that it was the Secretary who insisted, by reference to Mr Walls' affidavit, that she was acting in a broader public interest, but appears to have disregarded her earlier submission when it came to the exercise of the discretion as to costs. [44]

Conclusion as to costs of the trial

1. As noted above, the Council sought to rely upon the proposition that, in purporting to act in accordance with the Hardiman principle, the Secretary had greatly exceeded the proper function in that regard and had adopted an adversarial stance, having entered the fray on one side in contravention of her nominal espousal of neutrality. As a matter of fact, that submission should be accepted as to part of her conduct.
2. However, the question as to the Secretary's costs is properly resolved by accepting her espousal of neutrality as the principle by which she should have abided, whether she did or not. On that basis, she had no interest in costs following "the event" because she stood on neither side of an adversarial dispute which was resolved by the judgment of the Court. Further, given that both she and the Council were clearly espousing public interest roles, r 4.2(1) gave an additional reason why no order should have been made for costs as between these two governmental authorities in circumstances where it may be assumed that both adopted legitimate and arguable positions.
3. It follows that the costs judgment in favour of the Secretary against the Council should be set aside.

Costs of the appeal

1. There remains a question as to the appropriate order for the costs of the appeal, on the basis that the Council is unsuccessful on the substantive issue. The Council's appeal is properly to be dismissed on the basis of arguments comprehensively, effectively and appropriately put by counsel for HVEC. The Secretary had no significant role to play in that respect.
2. The Secretary did, however, play an active role, not inappropriately, in seeking to defend the order for costs made in the Court below. That defence was unsuccessful. Because the Secretary was engaged in a limited exercise to recover legal costs, there is no reason why she should not bear the costs of the unsuccessful defence. Those costs will include the costs of forcing the Council to file separate proceedings by way of a summons seeking leave to appeal, which was unnecessary.
3. It is appropriate to indicate how costs should be apportioned, to avoid further unnecessary disputation. Although the Secretary's submissions were extensive in this Court, in dealing with both the leave application and the entitlement to costs, the Council dealt with the matter relatively succinctly. Further, the costs argument did not constitute a major part of the hearing of the appeal. In my view the appropriate order is that the Secretary pay 20% of the Council's costs in this Court.

Orders

1. I would propose the following orders: 1. Dismiss the Council's appeal from the judgment in the Land and Environment Court delivered on 30 November 2018. 2. Allow the Council's appeal with respect to the costs order made against it in favour of the Secretary, Department of Planning and Environment, in the Land and Environment Court on 18 April 2019 and in place therefore make no order as to costs as between the Council and the Secretary. 3. Order that the appellant Council pay the first respondent, Hunter Valley Energy Coal Pty Ltd, its costs in this Court. 4. Order that the Secretary pay 20% of the Council's costs in this Court.
2. MACFARLAN JA: Coal mining began at the Mt Arthur coal mine in the Upper Hunter Valley in the early 1960s. On 24 September 2010 the Minister for Planning granted the first respondent, Hunter Valley Energy Coal Pty Ltd ("HVEC"), approval under the then operative Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") to consolidate its open cut mining operations and some related activities at the mine ("the Project Approval"). Part 3A was concerned with major infrastructure and other projects declared to be a project to which the Part applied.
3. In 2011, the Minister delegated the function of approving applications under s 75W of the EPA Act to modify a project approval under Part 3A to the Planning and Assessment Commission ("the PAC"). This was authorised by s 23 of the EPA Act. The PAC subsequently issued to HVEC a Modified Project Approval ("the MPA") on 26 September 2014. The MPA and the original Project Approval ("the 2010 EA") were preceded by HVEC's submission of an Environmental Assessment ("the 2014 EA").
4. On 7 June 2017 a nominee of the Secretary, New South Wales Department of Planning and Environment ("the Secretary") approved a Rehabilitation Strategy submitted by HVEC in purported compliance with Condition 42 of Schedule 3 of the MPA. This approval was subject to minor amendments.
5. Muswellbrook Shire Council, the appellant, then commenced the Land and Environment Court proceedings from which the present appeal is brought to challenge the Secretary's approval of the Rehabilitation Strategy. In particular, the appellant sought a declaration that the Rehabilitation Strategy did not comply with Condition 42.
6. After a six day hearing before Robson J, by judgment of 30 November 2018 his Honour rejected the appellant's case and dismissed its summons ([2018] NSWLEC 193). By a supplementary judgment of 18 April 2019, his Honour ordered the appellant to pay the costs of the proceedings of HVEC and of the Secretary who was the other respondent in the Land and Environment Court proceedings ([2019] NSWLEC 56). In making the latter order, his Honour found, contrary to the appellant's contention, that the Secretary's participation in the proceedings was necessary and appropriate.
7. On appeal, the appellant, by 12 grounds of appeal, challenged the primary judge's decision (i) concerning the approval of Rehabilitation Strategy, and (ii) to order the appellant to pay the Secretary's costs of the proceedings.
8. For the reasons appearing below, I consider that the appeal as to the former should be dismissed but that, in relation to the latter, leave to appeal should be granted and the appeal allowed.

The Modified Project Approval

1. The PAC issued the MPA on 26 September 2014 subject to extensive conditions contained particularly in Schedule 2 ("Administrative Conditions") and Schedule 3 ("Environmental Performance Conditions") of the approval.
2. The Administrative Conditions require HVEC to carry out the Project "generally" in accordance with the 2014 EA, the statement of commitments and stated conditions of the approval. Condition 3 is in the following terms: "If there is any inconsistency between the above documents [that is, the 2014 EA and the MPA], the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency."
3. Condition 13 permits HVEC to "submit any strategy, plan or program" required by the MPA "on a progressive basis".
4. The Environmental Performance Conditions in Schedule 3 are concerned with rehabilitation of the mine site and are in the following terms: "REHABILITATION Rehabilitation Objectives 41A. The Proponent shall rehabilitate the site to the satisfaction of the DRE. The rehabilitation must comply with the objectives in Table 14, and be consistent with the rehabilitation plan shown in Appendix 7 and the final landform plan shown in Appendix 8. Table 14: Rehabilitation objectives Feature Objective Mine site (as a whole) • Safe, stable and non-polluting • Final landforms designed to incorporate natural micro- relief and natural drainage lines to integrate with surrounding landforms •Designed as long term groundwater sinks and to maximise groundwater flows across back-filled pits to the final void • Minimise to the greatest extent practicable: Final voids • the size and depth of final voids • the drainage catchment of final voids • any high wall instability risk • risk of flood interaction. Agricultural land • Rehabilitate at least 33 hectares of Class II agricultural capability land in the area identified in the rehabilitation plan (see Appendix 7) • Rehabilitate other areas identified for agricultural use in the rehabilitation plan to sufficient agricultural capability to support grazing Revegetation areas • Restore at least 2,642 hectares of self-sustaining woodland ecosystems in accordance with the rehabilitation plan, including at least 500 hectares of White Box Yellow Box Blakely's Red Gum Woodland. • Flows to mimic pre-development flows for all flood events up to and including the 1 in 100 year ARI Creek diversions and realignments • Incorporate erosion control measures based on vegetation and engineering revetments •Incorporate structures for aquatic habitat •Revegetate with suitable native species Surface infrastructure • To be decommissioned and removed, unless DRE agrees otherwise. Community • Ensure public safety • Minimise the adverse socio-economic effects associated with mine closure.

Rehabilitation Strategy 42. The Proponent shall prepare a revised Rehabilitation Strategy for the Mt Arthur mine complex to the satisfaction of the Secretary. This strategy must: (a) be prepared in consultation with the DRE and Council, and be submitted to the Secretary for approval by the end of September 2015, unless otherwise agreed with the Secretary; (b) investigate options for: • increasing the area to be rehabilitated to woodland on the site; • reducing the size of final voids on site; and • beneficial future land use of disturbed areas, including voids; (c) describe and justify the proposed rehabilitation plan for the site, including the final landform and land use; and (d) include detailed rehabilitation objectives for the site that comply with and build on the objectives in Table 14. Note: The strategy should build on the rehabilitation plan in Appendix 7. Progressive Rehabilitation 43. The Proponent shall carry out rehabilitation progressively, that is, as soon as reasonably practicable following disturbance (particularly on the face of emplacements that are visible off-site). Interim stabilisation measures must be implemented where reasonable and feasible to control dust emissions in disturbed areas that are not active and which are not ready for final rehabilitation. Note: It is accepted that parts of the site that are progressively rehabilitated may be subject to further disturbance in future. Rehabilitation Management Plan 44. The Proponent shall prepare and implement a Rehabilitation Management Plan for the Mt Arthur mine complex to the satisfaction of the DRE. This plan must: (a) submitted to DRE for approval by 30 September 2015; (b) be prepared in consultation with the Department, NW, OEH and Council; (c) be prepared in accordance with relevant DRE guidelines; (d) describe how the rehabilitation of the site would be integrated with the implementation of the biodiversity offset strategy; (e) include detailed performance and completion criteria for evaluating the performance of the rehabilitation of the site, and triggering remedial action (if necessary); (f) describe the measures that would be implemented to ensure compliance with the relevant conditions of this approval, and address all aspects of rehabilitation including mine closure, final landform including final voids, and final land use; (g) include interim rehabilitation where necessary to minimise the area exposed for dust generation; (h) include a research program that seeks to improve the understanding and application of rehabilitation techniques and methods in the Hunter Valley; (i) include a program to monitor, independently audit and report on the effectiveness of the measures, and progress against the detailed performance and completion criteria; and (j) build to the maximum extent practicable on other management plans required under this approval."

1. Condition 3 in Schedule 5 of the MPA requires HVEC each year to "review the environmental performance of the project to the satisfaction of the Secretary". Condition 4 of Schedule 5 requires that within three months of certain events, such as the submission of an annual review, HVEC "review, and if necessary revise, the strategies, plans and programs required under this approval to the satisfaction of the Secretary".
2. Appendix 7, which is referred to in Condition 42 in Schedule 3 of the MPA quoted in [109] above, is a "Biodiversity Offset Strategy And Rehabilitation Plan". It comprises an aerial photograph of the mine site with superimposed markings identifying actual and proposed features of the site.

The Rehabilitation Strategy

1. On 26 May 2017 HVEC submitted a 63 page Rehabilitation Strategy, purportedly complying with Condition 42, to the Secretary for approval. On 7 June 2017 the Secretary's nominee expressed his satisfaction with the document and, after some limited changes suggested on behalf of the Secretary were incorporated, gave the Secretary's approval to it.
2. The presently relevant parts of the Strategy are as follows.
3. The Introduction includes the following statement: "The Strategy has been developed taking into account the Australian Government handbook for Leading Practice Sustainable Development Program for the Mining Industry, Mine Rehabilitation 2016. The Strategy provides the overarching standard for decision making in terms of rehabilitated landscape and complements the Mt Arthur Coal Conceptual Mine Closure Plan. The Rehabilitation Management Plan / Mining Operations Plan (MOP), Biodiversity Management Plan, and other relevant plans provide further specific details for management and monitoring of rehabilitation aspects at Mt Arthur Coal. Appendix 2 provides a guide to the relevant Project Approval conditions that pertain to the Strategy."
4. The next paragraph of the Introduction states that the Strategy "is a business level document that prescribes the overall rehabilitation approach at Mt Arthur Coal, including the goal, objectives and criteria for rehabilitation … ".
5. The Introduction continues as follows: "In 2013, Mt Arthur Coal instigated a report into the Future landscapes design project (FLDP). The Landloch Pty Ltd (2014) FLDP report set out to research a rehabilitation landform design that would address stakeholder requirements for both functionality and aesthetics. To do this, the project used material characterisation and runoff/erosion modelling to develop landform 'rules' that Mt Arthur Coal could use to develop acceptable designs. Landform evolution modelling was then used to assess and refine the designs. The outcomes of the Landloch Pty Ltd FLDP report were used for the development of a geomorphological design using the Applied Geofluv landform approach (Geofluv), as further described in this Strategy. This Strategy has been developed to ensure that the post mining landform supports the selected agricultural post-mining landuses and enhancing habitat value of the woodland areas integrated into the wider agricultural landscape. Due consideration to visual amenity has been integrated into the Strategy, together minimisation of visual impact during mining operations, and blending the post-mining landform with surrounding un-mined topography. The post-mining landform will also allow for grazing in selected areas, with the re-establishment of land capability classes generally equivalent to pre-mining. The Strategy also aims to increase native woodland areas at the end of mine life, and enhance regional habitat linkages between remnant onsite native vegetation communities, offset areas, rehabilitated mined land and offsite vegetation areas. This is consistent with the general vegetation strategies found in the Synoptic Plan, which is currently under review. Following community and stakeholder consultation, the Strategy generally reflects community expectations for the final landform design and rehabilitation. Land use options are a dynamic aspect of mine rehabilitation due to changing expectations and technology. Landforms need to be designed with future land use in mind but are limited by the information and approvals available at any point in time. Mt Arthur Coal use strategic consultation and engagement to maintain up to date landform design and land use. The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach and the design has been included in the Strategy. The Geofluv approach shown in the Strategy will be applied to emplacements where the design meets requirements for stability, rehabilitation and approved land uses. Design and construation of emplacement areas following the Project Approval Mod1 will be continued using the same Geofluv approach where appropriate. Pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief. The design is expected to evolve with experience and monitoring of the emplacements and therefore the design shown in the Strategy is indicative only. Updated designs for remaining emplacements will be included in subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval. Mt Arthur Coal has a firm commitment to minimising the impact of its operations on the environment and community, and has a comprehensive Environmental Management System (EMS) in place to fulfil this commitment. This Strategy is a component of the Mt Arthur Coal EMS. Further detailed procedures relating to rehabilitation to support this Strategy are outlined in the MOP (which satisfies the requirement for a Rehabilitation Management Plan under Schedule 3 Condition 44 of PA09_0062 MOD 1), THE Conceptual Mine Closure Plan, the Biodiversity Management Plan and Mt Arthur Coal's Rehabilitation and Ecological Monitoring Procedure (MAC-ENC-PRO-080)."
6. The Strategy then refers to its Figure 3 which constitutes "a diagrammatic representation of the post mining landscape" of the mine site and Figure 4 which shows proposed post-mining capabilities and uses of the site.
7. The Strategy continues with a description of different "domains" into which the site is notionally divided for the purpose of identifying the nature of proposed rehabilitation.
8. Under the heading "Overburden Emplacement Areas" the Strategy includes the following: "As noted in Section 5.1.1 of the 2013 EA, the overall objective of the rehabilitation program is to achieve landuse capability following the cessation of mining that is comparable to pre-mining landuse and considers stakeholder's interests. Additionally, it is proposed to increase the percentage of native woodland to improve habitat value with minimum areas defined in the Biodiversity Management Plan, which also aligns with stakeholder interests. Ongoing investigation into final land use including the opportunity of further woodland planting will be updated to the strategy as investigations are completed. … The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach. The Geofluv approach shown in the Strategy will be applied to emplacements where the design is shown to meet requirements for stability, rehabilitation, economic and approved land uses. Further detailed design of emplacement areas, to be established following the Project Approval Mod 1, will be developed using the same Geofluv approach where appropriate. Updated designs for these remaining emplacements will be included in a subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval. Pre-Project Approval Mod1 emplacements will not be retrospectively modified to include Geofluv design or natural relief."

The Appellant's Further Amended Summons

1. By its Further Amended Summons, the appellant sought declaratory and other relief pursuant to s 124 of the EPA Act. It invoked the Land and Environment Court's jurisdiction under s 123 of the EPA Act to "remedy or restrain a breach of this Act" which is defined by s 122 to include a consent granted under the Act.
2. The appellant alleged that HVEC breached the MPA by providing to the Secretary a Rehabilitation Strategy which failed to comply with s 42 of the MPA because, in essence, the Rehabilitation Strategy failed to include the rehabilitation objectives required by Condition 42 to be included.
3. The appellant also alleged that, by reason of these deficiencies in the Rehabilitation Strategy, the Secretary had no jurisdiction to state her satisfaction with the Rehabilitation Strategy, with the result that her expressed satisfaction with it was void.

The primary judgment

1. The primary judge first considered HVEC's submission that the pleaded grounds of judicial review were not available to the appellant because, in considering whether to approve the Rehabilitation Strategy, the Secretary was exercising an executive rather than a statutory function (see [156]). His Honour rejected the argument, holding that, in so acting, the Secretary was exercising a statutory function delegated to her by the PAC, which was in turn a delegate of the Minister (see [173]).
2. His Honour then considered the effect of Condition 3 of Schedule 2 of the MPA which provides that the terms of the MPA should prevail over those of the EA's in the case of inconsistencies. His Honour recognised that the MPA would prevail in the event of inconsistency but said that "the Court should not look for an inconsistency" and should favour a harmonious operation of the documents (see [191]-[192]).
3. His Honour then turned to the question of whether, on its proper construction, the matters listed in paragraphs (a) to (d) of Condition 42 must exist as a matter of objective fact before the Secretary is able to be satisfied with the Rehabilitation Strategy in accordance with that condition. His Honour gave in essence the following seven reasons for concluding that it does not (see [228]-[252]): 1. Reading the MPA "as a whole", the word "must" in Condition 42, preceding paragraphs (a) to (d), indicates of what the Secretary is to be satisfied, whether those matters have been "adequately addressed [being] a question properly left to the Secretary". 2. There is a "high level of generality" in the language used in Condition 42, and in Appendix 7 to which it refers, for example in the use of the word "objectives" rather than "requirements". His Honour referred in this context to the Rehabilitation Management Plan (described in Condition 44) and the Mining Operations Plan ("MOP"), the latter being "a tool" used by the Division of Resources and Energy ("DRE") to monitor the progress of mining and rehabilitation activities. His Honour considered that the Rehabilitation Strategy was intended to be "a high level document outlining objectives" whilst the MOP was to provide "procedures by which those objectives may be achieved" (see [238]). 3. The appellant's construction of Condition 42 would lead to confusion because the Secretary would have to confirm objective compliance with the matters listed in paragraphs (a) to (d) of Condition 42 before considering whether she was appropriately satisfied. 4. The appellant's construction would give rise to difficulty and potential delays because there would often be "uncertainty on the part of the relevant stakeholders as to whether the objectives had been sufficiently complied with in an objective sense" (see [245]). 5. That paragraphs (a) to (d) of Condition 42 are "generally expressed, somewhat indistinct, and in the nature of merits considerations" favours the conclusion that they were specified as matters about which the Secretary was to be satisfied (see [248]). 6. Reading the first two sentences of Condition 42 together, the use of the word "satisfaction" suggests that the matters in paragraphs (a) to (d) are criteria to guide the exercise of the Secretary's discretion. 7. The reference in the 2014 EA to the Rehabilitation Strategy providing "the overarching concepts for decision making in terms of landscape and land use for Mt Arthur Coal, whilst the BRMP and other relevant management plans provide specific details for management" weighed against the appellant's construction.
4. Although the question did not strictly arise, in light of his Honour's construction of Condition 42, his Honour then proceeded to consider whether the Rehabilitation Strategy complied with Condition 42 as a matter of objective fact. His Honour found that it did, making the following general observations: "257 I consider that the Rehabilitation Strategy was always meant to be a strategy document. This is made clear by the use of the word 'strategy' as well as the role of Condition 42 in the overall scheme of rehabilitation envisaged by the Modified Project Approval. I consider strategy to mean (in accordance with the Macquarie Dictionary, (6th ed, 2013)) '…a method of conducting operations…' As such, I also find that the Modified Project Approval, and in particular the primary conditions presently under consideration, provide for the preparation of a group of documents each of which deals with rehabilitation of the mine. Contrary to Council's submissions, I do not consider that leaving issues of detail to be articulated in the MOP is an impermissible derogation from the requirement to prepare a Rehabilitation Strategy but rather consistent with the scheme envisaged by the Modified Project Approval. 258 This conclusion accords with my findings above at [227]-[252], my construction of Condition 42 and specifically my consideration of the matters in Table 14. When the Rehabilitation Strategy is considered (and construed) within the scheme of the Modified Project Approval, I find that it is envisaged to be a 'road-map' which provides high-level goals which the rehabilitation of the mine is to achieve. Again, so much is evident from the choice of the word "strategy" and the focus in Condition 42 on the development of 'objectives'. 259 Moreover, I consider there is force to HVEC's submission that the requirement in Condition 42 to 'comply' with the objectives in Table 14 means that the Rehabilitation Strategy is required to develop objectives which are 'not inconsistent with' the Table 14 objectives. I also accept that the requirement to 'build upon' the objectives does not mean that each objective in Table 14 needs to be expanded upon in granular detail but rather that the Rehabilitation Strategy as a whole is to contain an expansion upon the objectives in Table 14 in the context of the mining operations currently taking place. I do not consider that a failure to articulate an expanded version of one of the Table 14 objectives in the Rehabilitation Strategy means that the Rehabilitation Strategy has failed to build upon the Table 14 objectives."
5. His Honour then proceeded to consider the 10 particular respects in which the appellant contended that the Rehabilitation Strategy did not comply with Condition 42.
6. In finding that the Rehabilitation Strategy did not contain any relevant deficiency, his Honour made the following observations concerning the first item in Table 14 to which Condition 42(d) refers (see [109] above). That item states, as an objective, "[f]inal landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms" in relation to the "[m]ine site (as a whole)": "279 I accept the submission of HVEC that the expression 'mine site (as a whole)' means the mine site generally rather than each square inch of the site. This has the consequence that the Table 14 objectives which apply to the 'mine site (as a whole)' have application to those parts of the mine to which they can be sensibly and usefully applied. It would be unusual to conclude that Table 14 requires the disturbance of land to meet the objectives set out if the land would not otherwise have been disturbed by the mining activities being undertaken and I do not consider that the words of Condition 42 and Table 14 mandate that conclusion. 280 Seen in that light, I do not consider that the limitation of the Geofluv approach to those areas of the site deemed 'appropriate' is an unreasonable limitation or an impermissible derogation from the language of Table 14. 281 Further, I accept that the word 'incorporate' in this context means that the final landforms should 'include' natural micro-relief and natural drainage lines, not that the entirety of the mine site is required to be altered. In this regard, I note that the 2014 EA envisaged only minor changes to the scheme of rehabilitation being occasioned by the modification of the Project Approval. As earlier noted, the 2014 EA is given effect by condition 2 in schedule 2 of the Modified Project Approval and I find that this interpretation of 'incorporate' means that this condition operates harmoniously with Condition 42 and Table 14. 282 Whilst I consider there is some force to Council's argument that the rehabilitation of existing emplacements should not be called 'retrospective' but would constitute prospective requirements applying to the whole of the site over which the consent will operate, I do not find that this provides a proper basis for concluding that existing emplacements are required to be disturbed by the Modified Project Approval. There is no explicit requirement that such work should be undertaken and for the reasons I have articulated, I find that the reliance on Condition 42 and Table 14 for this purpose is misplaced."
7. The primary judge then considered the appellant's contention that the Secretary's state of satisfaction was legally unreasonable in accordance with the principles stated in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. The appellant made 18 submissions in support of this contention. His Honour noted that he had considered all but six of these when determining that the Rehabilitation Strategy objectively complied with the requirements of Condition 42. As he found it did comply, he said that he would not, and could not, find that the Secretary's decision was legally unreasonable in any of those 12 respects. The remaining six particular submissions were as follows: "(4) [I]t fails to identify what pollution risks from the mine site as a whole might exist, how the risk are or were to be ascertained and then managed; … (12) It defers to an unidentified decision-maker to decide what rehabilitation approach is considered 'appropriate'. Council submits that this is an unlawful deferral of the Secretary's function; (13) It introduces four 'requirements' of stability, rehabilitation, economic and approved land use which are not rationally justified within the Rehabilitation Strategy; (14) It fails to identify which emplacements will actually be subject to the four requirements mentioned in (13); (15) It defers some of its essential elements to a subsequent version of the Rehabilitation Strategy to be submitted in 2018 for review and approval and presumes that it will be approved; (16) It provides that the Goefluv approach will only be applied to MacLeans Hill and even then only if a 'non-existent 'design' allows for it'. Council submits that this is objectively irrational."
8. His Honour rejected each of these further submissions stating, inter alia: "334 In relation to Council's complaint that the Rehabilitation Strategy defers consideration as to what rehabilitation approach is considered 'appropriate', I consider that this must be examined in the context of the fact that the Geofluv approach has not been previously employed at the mine by HVEC. In those circumstances, it is not irrational to await the results of its use before committing to using it more broadly on the site and certainly not irrational in the sense considered by the High Court in Li. … 337 I accept, as was submitted by HVEC, that given the Rehabilitation Strategy makes it clear that pre-existing emplacements (which are depicted as 'existing rehabilitation') are not intended to be further disturbed, it is possible to conclude on the basis of Figure 4 that it is the areas of "overburden emplacement" which the Rehabilitation Strategy envisages will be rehabilitated with the Geofluv approach where the "design meets requirements for stability, rehabilitation, economic and approved land uses". 338 This reading of the Rehabilitation Strategy does require the reader to interpret the areas of 'existing rehabilitation' as being coterminous with the emplacements which were pre-existing at 24 September 2014. The Rehabilitation Strategy does not make this link explicit and greater clarity would have been desirable. However, reading the document carefully and having regard to the evidence of Dr McCullough who stated that she was able to identify the existing areas of rehabilitation from the aerial photographs in the Rehabilitation Strategy (at Tcpt, 20 September 2018, p 252 (3-12)), I would not conclude that the Rehabilitation Strategy was objectively deficient or non-compliant with Condition 42 on this basis or that the Secretary's state of satisfaction was legally unreasonable. 339 I also do not consider that the fact that the Rehabilitation Strategy defers some matters for later consideration makes the Secretary's decision irrational in either an ordinary or legal sense. In this regard, it is important to remember that mining is ongoing and that the Modified Project Approval envisages that Rehabilitation will be an ongoing and dynamic process to which adjustments will be required to be made over time."

Availability of judicial review

1. A preliminary point arose on appeal (as a result of a Notice of Contention filed by HVEC) as to whether, in exercising her function under Condition 42 of deciding whether she was satisfied with the Rehabilitation Strategy, the Secretary was exercising a statutory function or a non-statutory executive governmental function. HVEC accepted that in either case judicial review was available because, if the appellant's arguments are correct, an essential pre-condition to the exercise by the Secretary of her governmental power (whether statutory or executive) was absent.
2. HVEC submitted however that characterisation of the Secretary's power as executive rather than statutory would favour its construction of Condition 42. As I do not accept that this would in fact affect the construction of Condition 42, the distinction is not of present significance. I indicate however that my view is that the power is non-statutory because neither the EPA nor any other statute confers a power on the Secretary or any other relevant person to certify fulfilment of conditions of the MPA. The EPA simply permits the imposition of the conditions. If a condition requires action by a government officer, that officer, in fulfilling the condition, will be acting pursuant to his or her executive powers, not any statutory power. I do not therefore agree with the contrary view that the primary judge expressed on this question (see [173]).
3. I add that in its reply submissions on this topic the appellant raised for the first time a question as to whether Condition 42 was invalid. As the appellant did not submit at first instance that it was and as, for reasons given in argument, HVEC would be prejudiced if the issue were raised, it should not be entertained.

The proper construction of Condition 42 (Grounds 1 and 2)

1. For the following reasons, I reject the appellant's contention that paragraphs (a) to (d) of Condition 42 are jurisdictional facts and state pre-conditions to the exercise of the Secretary's function under the Condition which are required to exist as a matter of objective fact. It is in my view instead part of the Secretary's function to satisfy herself (or himself) about those matters. In light of this conclusion it is unnecessary to address HVEC's Notice of Contention seeking to support the primary judge's conclusion for reasons additional to those which he gave.
2. First, the use of the words "to the satisfaction of the Secretary" are against the appellant's construction, assuming, as I consider to be correct, that the two sentences of Condition 42 are to be read together. The division of Condition 42 into two sentences cannot be ignored, but the close proximity of the sentences to each other and their linkage by the use in the second of the expression "[t]his strategy" to refer to the "Rehabilitation Strategy" referred to in the first sentence indicate that each is an important part of the context in which the other is to be construed.
3. The importance of this first reason is confirmed by Timbarra Protection Coalition Inc v Ross Mining LN (1999) 46 NSWLR 55; [1999] NSWCA 8 where Spigelman CJ (with the agreement of Mason P and Meagher JA) said at [42]: "Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - 'opinion', 'belief', 'satisfaction' - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig Administrative Law 3rd ed, 1994, 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198C. Where such words do not appear, the construction is more difficult."
4. The second reason is that the matters stated in paragraphs (a) to (d) are largely expressed in general terms, requiring evaluative decisions to be made to determine whether the conditions have been fulfilled. Whilst the court would not be incapable of making these determinations, the function is better suited to performance by a person with some knowledge or expertise in relation to the type of commercial/environmental matters referred to in those paragraphs.
5. The third reason is that, if the appellant's argument were correct and the paragraphs therefore stated conditions that had to be objectively satisfied, the Secretary would need to consider the paragraphs to determine if the conditions were satisfied (assuming that a court had not done so) and then again when she considered whether she was satisfied with the proposed Rehabilitation Strategy. Again support is to be derived from Timbarra Protection Coalition. Spigelman CJ said at [44] of that decision: "The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions." See also Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [46]-[50].
6. Turning to a consideration of the individual paragraphs for the purposes of both this and the second reason given above, it can be said that for the purposes of paragraph (a) a court could readily determine if any consultation had occurred with the DRE and Council but there would be little if any practical point in such a determination being made. The more important practical issue would be the adequacy of the consultation in relation to which, by implication from paragraph (a) and common sense, the Secretary would want and need to be satisfied before approving the Rehabilitation Strategy. Thus if the appellant's argument were correct there would be a potential for a duplication of effort, for no apparent point.
7. The same comment can be made about paragraphs (b) and (c). There would be little point in a court considering whether those conditions had been fulfilled, when the more important practical issue that they raised would be the adequacy of the investigation, description and justification to which they refer. The adequacy of them would clearly be an issue for the Secretary's consideration when determining whether to approve the Rehabilitation Strategy.
8. Similar considerations also apply in relation to paragraph (d). Whilst a court could determine whether, as matter of objective fact, the Strategy included "detailed rehabilitation objectives", the Secretary would be far better equipped than a court to consider the adequacy of those objectives, compliance with the requirement that they "build on" the objectives in Table 14 and whether, in accordance with the Note to Condition 42, the Strategy did in fact "build on the rehabilitation plan in Appendix 7".
9. The fourth reason for rejecting the appellant's submission relates to the scheme for rehabilitation for which Schedule 3 of the MPA provides. Condition 41A requires the rehabilitation of the site to the satisfaction of the DRE (see [109] above). The rehabilitation is to conform with the objectives stated in Table 14 and be consistent with the rehabilitation plan shown in Appendix 7 and the final landform plan shown in Appendix 8.
10. Condition 43 is also concerned with the implementation of rehabilitation, requiring it to be progressive and effected as soon as reasonably practicable following disturbance. As well, in requiring the preparation and implementation of a Rehabilitation Management Plan, Condition 44 is similarly concerned with the implementation of rehabilitation rather than the strategy for it. In contrast with each of those Conditions, Condition 42 is concerned with the formulation of the rehabilitation "strategy".
11. In these circumstances, the primary judge was well justified in describing the Rehabilitation Strategy for which Condition 42 provides as a "'road-map' which provides high level goals which the rehabilitation of the mine is to achieve" (see [258]). This is indicated by (i) the inclusion of the word "Strategy" in the heading to Condition 42 and in the title of the document for which it provides, (ii) its contents, which are essentially concerned with "objectives", and (iii) its presence in a group of conditions concerned with rehabilitation in which conditions other than it relate to the implementation and management of rehabilitation. Condition 42 is thus more concerned with policy issues than details and its paragraphs are thus more likely to have been intended for consideration by the Secretary rather than by a court.
12. The fifth reason for rejecting the appellant's contention relates to the different structures of conditions imposed by the MPA.
13. There are a number of conditions which impose obligations on HVEC. Examples are Conditions 2 (concerned with noise generated by the mine), 6 (traffic noise) and 10 (blasting impact assessment). These conditions require HVEC to "ensure that" a certain noise level is not exceeded.
14. A different type of condition is that of which Conditions 24 and 42 are examples. Condition 24 is concerned with preparation and implementation of an Air Quality Management Plan and is in a similar form to Condition 42. It provides that HVEC "shall prepare and implement an Air Quality Management Plan for the Mt Arthur mine complex to the satisfaction of the Secretary" (emphasis added). It then states that "[t]his plan must" and lists a number of matters in paragraphs (a) to (c).
15. Another example of the same type of condition, but in a somewhat different form, is Condition 23 concerning operation conditions. It provides that: "[HVEC] shall: (a) implement best practice … … (g) co-ordinate air quality management … to the satisfaction of the Secretary."
16. Both types of conditions that require the satisfaction of the Secretary (for example Conditions 23, 24 and 42) contrast with those conditions which impose obligations (for example Conditions, 2, 6 and 10). If it had been intended by Condition 42 to impose an obligation on HVEC to submit a rehabilitation strategy having certain characteristics, rather than one that the Secretary was satisfied had those characteristics, that could readily have been conveyed by using the type of condition in the MPA which clearly imposes obligations.

Whether the Rehabilitation Strategy objectively complied with Condition 42

1. As I have concluded that, on the proper construction of Condition 42, the Rehabilitation Strategy submitted by HVEC was not required to comply with paragraphs (a) to (d) as a matter of objective fact before the Secretary was able to be satisfied with it, the question of whether it did so comply does not arise. I shall not therefore deal with it as such, although, as will be seen, a number of the arguments put by the appellant in relation to it (captured in Grounds 3 to 10) are of relevance to the further question, which does arise, of whether the Secretary's satisfaction was legally unreasonable.

Whether the Secretary's satisfaction with the Rehabilitation Strategy was legally unreasonable (Ground 11)

1. The appellant contended that the Secretary's satisfaction with the Rehabilitation Strategy pursuant to Condition 42 was legally unreasonable in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680. As there was no issue on appeal in the present case as to the principles to be applied, it is sufficient to identify them by reference to the following observations of Kiefel CJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 718 at [10]-[11]: "In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case. Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies" (citations omitted).
2. At first instance the appellant gave 18 reasons why it contended that the Secretary's satisfaction was legally unreasonable. It did not address these individually on appeal but instead stated in [71] of its Written Submissions that the matters had been "substantially addressed" earlier in the Written Submissions. It is sufficient therefore for me to deal with those written submissions that the appellant had earlier made. These were made by reference to Grounds 3 to 10 in the appellant's Notice of Appeal which were, at least primarily, put in support of the proposition with which I have found that I need not deal of whether the Rehabilitation Strategy complied with paragraphs (a) to (d) of Condition 42 as a matter of objective fact.
3. As indicated below, an answer to most of the appellant's submissions in the context of its legal unreasonableness argument is that the contrary of the appellant's submissions is at least arguable. As a result, to the extent that the Secretary adopted a view of the construction of Condition 42, or of the facts, contrary to the appellant's submissions, the Secretary took a fairly arguable stance and therefore did not act unreasonably.
4. On appeal, the appellant did not put any argument, separate from its unreasonableness argument, that the Secretary took irrelevant considerations into account or failed to take relevant considerations into account.

Ground 3 - whether Table 14 displaced parts of the EA

1. In Ground 3, the appellant contended that the primary judge erred when he found that Condition 42 and Table 14 "did not displace the scheme of rehabilitation envisaged by the Environmental Assessments". In the absence of reasons given by the Secretary for her satisfaction with the Rehabilitation Strategy, the appellant has not established that the Secretary acted on this basis. Certainly, the mere fact of her relevant satisfaction does not establish that.

Ground 4 - whether the Rehabilitation Strategy was to be a high level document

1. For the reasons given at [144] above, I consider that, contrary to the appellant's submission, Condition 42, when read in context, did contemplate that the Rehabilitation Strategy would be a high level document.

Ground 5 - whether the current mining operations were an irrelevant consideration

1. Ground 5 involves a challenge to an aspect of the primary judge's reasoning concerning the proper construction of Condition 42. As that aspect of his reasoning does not form part of my reasoning on that issue, this Ground need not be considered.

Ground 6

1. This ground is not pressed by the appellant.

Ground 7 - whether Condition 42 permitted deferring compliance with it

1. The primary judge rejected the appellant's argument that "deferral of the detailing and building on the Table 14 objectives in the [Rehabilitation Strategy] was not permitted by Condition 42". His Honour's reasons were summarised in [257] of his judgment (quoted in [126] above). As his Honour's conclusion is not in my view unarguably wrong, adoption of the view by the Secretary, if that occurred, did not render her satisfaction with the Rehabilitation Strategy legally unreasonable.

Ground 8 - the meaning of "Mine site (as a whole)"

1. Ground 8 is concerned with the first item in Table 14 which is referred to in Condition 42(d) and set out at [109] above. The primary judge rejected the appellant's submission that this item requires HVEC to rehabilitate the site to ensure that, on every part of the mine site, final landforms reflect "natural micro-relief and natural drainage lines to integrate with surrounding landforms".
2. The effect of the primary judge's conclusion was that the words "Mine site (as a whole)" in the first item simply stand as a contrast to the specific areas or topics to which the following items are said to relate and are thus an indication that the statements in item 1 are to apply but in a loose sense without dictating that every part of the mine site is necessarily to be treated as described in the first item. Supporting this view is the fact that parts of the mine site have already been rehabilitated and there is arguably no clear directive in Condition 42 or elsewhere that already-undertaken rehabilitation is to be re-done.
3. As this approach is at least arguable, its adoption by the Secretary would not have rendered her satisfaction with the Rehabilitation Strategy legally unreasonable.

Ground 9 - whether the objectives in Table 14 "must be built on"

1. Condition 42(d) states that the Rehabilitation Strategy must "include detailed rehabilitation objectives for the site that comply with and build on the objectives in Table 14". The appellant complained that the Rehabilitation Strategy prepared by HVEC was silent as to the objectives stated in Condition 14 of "incorporating structures for aquatic habitat in creek diversions" and "the adverse socio-economic effects associated with mine closure", and merely repeated the objective of ensuring public safety.
2. The primary judge rejected the appellant's contention that this was not permissible and found that a rehabilitation strategy could "build on the objectives in Table 14" even if it did not attempt to enhance each and every one of them. This was an at least arguably correct view, with the result that if the Secretary acted on the basis of it, she did not act unreasonably in the legal sense.

Ground 10 - whether decision-making could be delegated to HVEC

1. The appellant submitted that certain statements made in the Rehabilitation Strategy indicated that HVEC did not intend to "retrospectively modify pre-MPA emplacements to include the Geofluv approach or natural relief at all". It asserted that this amounted to the delegation to HVEC of the decision as to where the Geofluv approach would be used and that the Secretary's approval of the delegation amounted to an abdication or neglect of her responsibility under Condition 42.
2. This submission is answered by what I have said in [161]-[162] above concerning item 1 of Table 14. If, as I have concluded, the Rehabilitation Strategy was arguably not required to provide for "natural micro-relief and natural drainage lines" to integrate with surrounding landforms on every part of the site, the decision as to where to use Geofluv (which was directed to that end) was arguably able to be left to a later decision.
3. This was an at least arguable view on which it was open to the Secretary to act, with the result that in this respect also the appellant did not establish that the Secretary's satisfaction with the Rehabilitation Strategy was legally unreasonable.

Conclusion on Ground 11

1. For these reasons, Ground 11, which contended that the Secretary's satisfaction with the Rehabilitation Strategy was legally unreasonable, must be rejected.

Whether the appellant should have been ordered to pay the Secretary's costs at first instance (Ground 12)

The costs judgment at first instance

1. By his costs judgment of 18 April 2019 the primary judge rejected the appellant's submission that it should not be ordered to pay the Secretary's costs of the proceedings because the Secretary's involvement was not appropriate bearing in mind the observations of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1981) 144 CLR 13; [1980] HCA 13 at 36. In ordering the appellant to pay the Secretary's costs, the primary judge said inter alia: "70 I consider that the Secretary was properly joined by Council and I find that the Secretary's participation was necessary and generally limited to submissions relating to her powers and procedures: Caroona Coal (Caroona Coal Action Group Inc v Coal Mines Australia (2010) 173 LGERA 280; [2010] NSWLEC 59) at [103]. As she made no submissions in relation to the content of the Rehabilitation Strategy or whether the decision to approve the Strategy was reasonable, I find that her participation was consistent with the Hardiman principle due to the manner in which she conducted herself. … 72 I accept that the Secretary is the repository of planning obligations and that it could be said that between Council and the Secretary there are two 'public interests'. This does not dictate that one should necessarily prevail over the other in order to determine the appropriate exercise of the Court's discretion. Given my finding above that the Secretary's participation was consistent with the Hardiman principle, I do not consider that she conducted herself in a manner which warrants a departure from the usual rule."
2. In Hardiman, prosecutors obtained prerogative relief against the Australian Broadcasting Tribunal and entities who had been the subject of inquiry by the Tribunal, the Court having found that there were defects in the procedure adopted by the Tribunal. The Court concluded its judgment with the following observations (at 35-6): "There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal".
3. In Caroona Coal, Preston CJ ordered the unsuccessful applicant to pay the costs, not only of the first respondent, but also of the Minister for Mineral Resources who was the second respondent, on the basis that the Minister's participation in the hearing was "properly limited to the powers and procedures of the Minister under the Mining Act" (see [103]). Preston CJ referred to Hardiman at 36.
4. In the present matter, the appellant argued in this Court that s 58(3)(c) of the Land and Environment Court Act 1979 (NSW) did not require it to have leave in order to appeal against the primary judge's costs order. In particular, it relied on this Court's decision in Dillon v Gosford City Council [2011] NSWCA 328; (2011) 284 ALR 619 at [53]-[59] identifying the practice of this Court not to require leave where there is (as here) a challenge to substantive orders as well as a costs order and indicating that a departure from this practice ought preferably to be considered by a bench of five judges (at [57]). As the Secretary did not give notice in accordance with [17] of the Court of Appeal Practice Note SC CA 1 of an intent to challenge Dillon and the opportunity was thus not afforded to the Court to sit a bench of five judges, the practice identified in Dillon should be applied with the result that the appellant did not require leave to appeal against the costs order. I note in conclusion that there is a difference between the legislation under consideration in Dillon and that applicable here but the difference is sufficiently limited for Dillon to arguably determine whether the Secretary needs leave to appeal in the present case.
5. Even if it be accepted, as his Honour held, that the Secretary limited her participation at first instance to submissions "relating to her powers and procedures", that did not necessarily indicate her entitlement to a costs order. Rather the question should have been, as it was in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [18] (a decision referred to in argument on the present appeal), whether the unsuccessful party should be ordered to pay more than one set of the opposing parties' costs.
6. Consistent with Hardiman, the Secretary was entitled to be present at first instance to make submissions concerning her powers and procedures but in the present case that meant that the submissions essentially related to the proper construction of Condition 42. This was an issue in relation to which there was already a well-represented, active contradictor (HVEC). When the Secretary decided to take an active stance equating with that of the contradictor she in my view took the risk that she would not obtain an order for her costs.
7. The contradictor was successful but the Secretary's presence did not add significantly to the contradictor's case. The appellant submitted, accurately, that the primary judge "did not identify any part of the record which contradicted the Council's submission that the Secretary's participation did not add to the arguments made by HVEC". Nor was this Court's attention drawn to any such material. Moreover, considerable caution in taking an active role in relation to the proper construction of Condition 42 was warranted in light of the Secretary's continuing role contemplated by that and other conditions of the MPA. As many of the conditions require the Secretary's satisfaction, there was, as envisaged by the Hardiman principle, a real risk of the Secretary endangering the impartiality that is to be expected of her in performing further functions under the MPA.
8. In these circumstances, I would allow the appeal against the costs order made in favour of the Secretary and set aside that order, with the consequence that there would be no order as to the Secretary's costs of the proceedings at first instance.
9. As the appellant has succeeded against the Secretary on the costs issue, the Secretary should be ordered to pay the appellant's costs of the appeal so far as it related to that issue. Although the appellant has been unsuccessful as to the substantive issues on appeal, I would not order the appellant to pay the Secretary's costs of those issues for the same reasons as I have proposed that the first instance costs order in favour of the Secretary be set aside. That is, on appeal HVEC was a well-represented, active contradictor of the appellant's case and, although the appellant failed on appeal, there is no reason why it should pay the costs of more than one respondent when the respondents contended for the same result and the Secretary's submissions did not add significantly to those of HVEC.
10. As Basten JA indicates, costs should be apportioned to avoid further unnecessary disputation. I agree with his Honour that the appropriate order is that the Secretary pay 20% of the Council's costs in this Court.

Orders

1. For the reasons given above, I agree with the orders proposed by Basten JA.
2. LEEMING JA: I have had the advantage of reading the judgments of Basten JA and Macfarlan JA. I agree with the orders they propose, and their judgments relieve me of the need to summarise the background to this appeal.
3. It is convenient to commence with conditions 41-44 in Schedule 3 of the modified project approval which issued on 26 September 2014. They are reproduced in Macfarlan JA's judgment. They impose obligations upon the proponent HVEC to do various things "to the satisfaction of the Secretary". Clause 42, upon which this appeal focussed, provides that HVEC "shall prepare" a revised Rehabilitation Strategy for the Mr Arthur mine complex "to the satisfaction of the Secretary." The condition goes on to identify four things which the revised strategy "must" do, and includes a note saying that the strategy "should build on" a nominated rehabilitation plan. Although "shall" in the first sentence may be contrasted with "must" in the following sentence, it was common ground that both were obligatory. The critical difference is that the obligation in the first sentence turned on the satisfaction of the Secretary, while the obligations in the second sentence were unqualified.
4. It is also important to bear in mind that the clause is not directed to anything which was to physically occur on site. It is directed to the creation and submission of a document, described as a "revised Rehabilitation Strategy", which was to be prepared in a particular way (paragraph (a)) and was to have certain contents (paragraphs (b), (c) and (d)). Each of those latter matters has an evaluative and potentially contestable element. For example, there is a range of ways in which a document might "investigate" various options, just as there is a range of ways in which the document might "justify" the proposed rehabilitation plan, and a range of ways in which "detailed" rehabilitation objectives may be included. It is easy to envisage a complaint that the rehabilitation plan was insufficiently justified or the rehabilitation objectives were insufficiently detailed. These matters, which flow directly from the language of the condition, inform its proper construction.
5. Further, the evaluative and potentially contestable matters just mentioned constitute the link between the first and second sentences. The first sentence imposes an obligation to prepare and supply a document. The second sentence imposes obligations directed to the process of creation, and the content, of that document. At least one of the ways in which the words "to the satisfaction of the Secretary" are given content is by reference to the evaluative and potentially contestable obligations as to the process of creation and the content of the document.
6. Finally, the condition also leaves important matters unstated. It is implicit that the revised Rehabilitation Strategy will not only be prepared, but provided to the Secretary. It is implicit that the document so provided will thereupon be considered by the Secretary, who may or may not be satisfied that HVEC has complied with the condition.
7. I shall return to these matters when considering the Council's challenge to the construction of the condition below. But the logical starting point for analysis is HVEC's notice of contention. The source of the power to impose condition 42 was (former) s 75W(4) of the Environmental Planning and Assessment Act 1979 (NSW), which remained in force in relation to applications to modify approvals granted under (former) Part 3A. There was a diffident suggestion in the Council's submissions in response to HVEC's notice of contention that the condition might not be valid. That submission was not advanced at trial, and ought not to be entertained for the first time on appeal.
8. By notice of contention, HVEC submitted that: "The Council's claim that condition 42 of the Modified Project Approval stipulates jurisdictional facts - that is, criteria the objective satisfaction of which enlivens the exercise of a statutory power or discretion - ought to have been rejected by the primary judge on the additional ground that the Secretary's function in respect of, and her approval of, the Rehabilitation Strategy did not involve the exercise of a statutory power or discretion, whether delegated (Reasons at [173]) or otherwise."
9. That gives rise to the question as to the nature of the "power" exercised by the Secretary, in determining whether or not she was satisfied by the Rehabilitation Strategy. That question only arises because the major premise of HVEC's notice of contention is that judicial review for "jurisdictional fact" is only available where a person is exercising a "statutory" power. HVEC relied on what was said in Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]. HVEC also disavowed the more general statement by the primary judge that "the pleaded grounds of judicial review are therefore unavailable": at [156]. HVEC submitted, both in writing and orally, that the primary judge had misapprehended its submission which was confined to the unavailability of judicial review for jurisdictional fact.
10. Judicial review for "jurisdictional fact" has been accompanied by an acute debate as to terminology. One aspect of that debate is whether a "jurisdictional fact" must have an objective existence in fact, as opposed to being a subjective state of mind. This was favoured by (among others) Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [37]-[42] and Professor Aronson (see M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co 2017), para [4.470]). However, the High Court has deployed the concept more broadly, including when the availability of a power is dependent upon a state of mind, such as an opinion, a state of satisfaction or a belief. See for example Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [37]: "The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned". As Basten JA said, with the agreement of Macfarlan and Meagher JJA, in Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [52], the term "jurisdictional fact" is a "potentially confusing label for what is better described as a precondition to the engagement of a statutory power". This debate is merely definitional. No one has denied that if the exercise of a power is preconditioned upon a state of satisfaction, then it is open to challenge the validity of the power by challenging the legal sufficiency of the state of satisfaction.
11. This appeal raises a separate terminological debate. It is whether "jurisdictional fact" review is available in relation to the exercise of non-statutory power. It is as arid as the first. In order to expose why, it is helpful to return to first principle.
12. It is unlawful to carry out coal mining and associated activities at Mt Arthur, save in accordance with (among other things) planning approval. HVEC has the benefit of planning approval, but the approval is not unconditional. Whether or not HVEC's operations are unlawful depends on whether or not HVEC has complied with the conditions to which the modified project approval is subject. Ultimately, if the Council (or any other applicant) wishes to seek relief from a court to prevent unlawful activities at Mr Arthur, an issue will arise whether the conditions qualifying the planning approval have been complied with. In the present case, where attention was confined to condition 42, and the Secretary has purported to accept the revised Rehabilitation Strategy, that reduces to determining two things: 1. first, whether the state of satisfaction that the Secretary attained was one which was legally valid; and 2. secondly, whether there were some factual matters which were not made out and which precluded the Secretary from concluding that HVEC had complied with the condition.
13. Both of those elements, but especially the second, involve questions of construction of the condition. As a matter of construction, the condition might have the legal consequence that the Secretary could not lawfully be satisfied of compliance unless the document contained certain things.
14. That is analogous to the "jurisdictional fact" analysis which is familiar as a matter of construction of powers conferred by legislation. The question is whether there is some objective, factual matter the existence of which is a precondition to the condition being satisfied, or whether all that matters is the subjective state of satisfaction of the Secretary.
15. While it suited HVEC to characterise the issue as one of power on the part of the Secretary, to be satisfied or dissatisfied with the revised Rehabilitation Strategy prepared by HVEC, the Secretary was performing a function reposed in her in accordance with the condition, which was but one of a large suite of conditions compliance with which was necessary in order for HVEC's coal mining activities to be lawful.
16. The distinction between statutory and non-statutory "power" is unhelpful in this context. The Secretary was not exercising a power in the traditional sense, which had a direct effect upon HVEC's rights. The position is quite different from the exercise of a statutory power to grant a licence or a visa, which then and there creates legal rights upon the licensee or visa holder. It is even further removed from an exercise of private power by the donee of a power of appointment or a power of attorney which then and there creates or affects rights. Rather, the Secretary was exercising a function, as a result of which HVEC either would or would not be free to carry on its coal mining activities in accordance with the modified project approval. Whether or not that function was validly exercised turned on whether any preconditions to its valid exercise had been satisfied. It has little to do with some abstract inquiry into the nature of the power being exercised.
17. The power to impose the condition is found in s 75W(4), and that condition conferred the function upon the Secretary. One could debate whether the Secretary's function was "statutory" or "non-statutory" (although before doing so it would be as well to define with precision what was meant by those terms). To my mind this recalls the debate whether an obligation to accord procedural fairness when a statutory power was exercised which affected rights was better regarded as an implication from statute or alternatively was imposed as a matter of common law. There may be cases where the distinction matters, but ordinarily little turns on it. Rather, the debate "proceeds upon a false dichotomy and is unproductive": S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [97].
18. It is commonplace for the exercise of powers and functions to be subject to conditions. I see no reason for curial review of the exercise of a power or function which is subject to a condition to turn on something as artificial as its characterisation as "statutory" or "non-statutory".
19. Substantially the same issue might arise in a dispute entirely divorced from governmental power. Suppose a lease contained a market review clause for rent, and suppose there was a dispute as to whether that clause was engaged because one party maintained that a condition precedent to the rent review had not been satisfied. In accordance with the principles stated by McHugh JA in Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335-6 which have been regularly applied (see, most recently, Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 at [106]-[108]), the initial question will be whether the ultimate determination was made in accordance with the lease, and that in turn will give rise to a question whether the condition precedent was established. That dispute could be resolved by a court (although it would not amount to judicial review, in the absence of any exercise of governmental power). The court would apply substantially the same principles to the construction of the terms of a lease as would have been applicable to the provisions of a statute or, as here, to the conditions attaching to planning approval.
20. HVEC relied on authority, rather than principle, in support of its distinction between statutory and non-statutory powers which limited curial review. But what was said in Gedeon does not assist HVEC. The joint judgment said at [43]: "The expression 'jurisdictional fact' was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker."
21. The statement was not expressed to be prescriptive. It was addressed to the facts of the case, namely, review a statutory power to authorise a controlled operation. No differently from "every word in every judgment", the statement is to be read in context: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638. I see no reason in principle for the circumscribed approach for which HVEC contends. The question is whether the function conferred on the Secretary of determining whether there had been compliance with the condition was preconditioned on the actual existence of some fact, or merely the Secretary being satisfied about some fact. (The "fact" in each case was as to the contents of a document, or the process by which that document had been prepared.)
22. Whether or not there is a "jurisdictional" precondition to the exercise of some power or function is a question of construction. Ordinarily the question arises as a matter of statutory construction, because the power or function is conferred by statute. In the present case, the question is one of construction of the conditions of the project approval. In the hypothetical case mentioned above, the question would be one of construction of the covenants of the lease. But I see no reason in principle why the conditions of an approval, or the covenants in a lease, may not impose a precondition to the valid exercise of any power or function, nor why that may not be considered by a court in properly constituted proceedings.
23. In short, I see no reason why anything substantive should turn on whether the "power" is statutory or non-statutory. Indeed, the facts of this case suggest that the distinctions between "statutory" as opposed to "non-statutory", and "power" as opposed to "function", are inapt.
24. Further, there is no reason why substantially the same principles which have been developed in relation to jurisdictional facts in statutory powers would not carry over to the case of construing a condition, although it is to be borne in mind that somewhat different rules of statutory construction apply to consents and approvals (see for example Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 at [42]-[48] and Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to DOCA) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]).
25. I return to the construction of the condition. The primary judge was correct to conclude that the exercise of power by the Secretary was not reviewable on the basis of some objective jurisdictional fact. The plainest indication of this is the statement that the strategy was to be prepared "to the satisfaction of the Secretary", and it is confirmed by the evaluative and contestable nature of the paragraphs which follow, including the extent to which the document investigated and justified options and the extent to which there are "detailed" rehabilitation objectives which "comply with and build on" those stated in Table 14. This accords with two of the matters identified in Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 at [26]: the express statement as to the satisfaction of the Secretary, and the fact that the matters involve evaluative judgment. I also agree with what Basten JA and Macfarlan JA have written at [29]-[42] and [134]-[150].
26. Basten JA has referred to the principle stated in Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30 at [64]. The Council did not rely on this principle. While it would apply to, say, the regime established by the Mining Act 1992 (NSW), to which HVEC or related companies are also subject, it is not entirely clear to me that it applies to the more general regime established by the Environmental Planning and Assessment Act 1979 (NSW), or even that part of that regime governed by (former) Part 3A, which is also applicable to planning approval for the construction of highways, buildings and infrastructure, as well as operating a mine. It is not necessary for present purposes for me to express a view on that point.
27. That deals with the main issue in the appeal. I agree with Macfarlan JA that the Secretary's satisfaction was not shown to have been legally unreasonable.
28. Elaborate submissions were exchanged on whether leave was required for the Council to appeal from the separate order as to costs. I am unable to discern a sensible legislative purpose to the effect that where a party exercised its right of appeal from a substantive judgment, that party would be subject to the requirement to obtain leave in respect of any separate challenge to the order for costs of the same litigation. If the only issue is as to costs, then leave is required. But why impose additional complexity and expense where statute has already conferred a right of appeal on the substance of a matter if that party also wishes to challenge the exercise of the discretion as to costs? I agree with the conclusion reached by Basten JA on this issue, for the reasons he gives.
29. If that be wrong, there should be a grant of leave to the Council. Part of the Council's submissions on costs before the primary judge were that the Secretary's participation was not necessary and "did not add any substance to the arguments", a submission recorded by the primary judge at [26], but not explicitly addressed in his Honour's exercise of the cost discretion. The Council's submission picks up the principles recently restated in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 at [20]-[22] concerning the general rule that an unsuccessful plaintiff should not have to pay two sets of costs for separately represented defendants between whom there is no possibility of conflict. The Council, although unsuccessful, should not have had to bear the Secretary's costs. I agree with what Basten and Macfarlan JJA have said about costs in this Court.

Endnotes

1. Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), Sch 2, cll 2 and 3(1) (Transitional Part 3A projects).
2. Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3) [2018] NSWLEC 193.
3. See [109] below.
4. (1976) 135 CLR 110 at 118-119; [1976] HCA 24.
5. (2016) 260 CLR 232; [2016] HCA 50 ("Berrima Gaol land claim").
6. Berrima Gaol land claim at [48] (French CJ, Kiefel, Bell and Keane JJ); [118]ff (Gageler J).
7. (2017) 262 CLR 510; [2017] HCA 30.
8. Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533.
9. Nicholas v Western Australia [1972] WAR 168 at 172, 174.
10. Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 455-456; Wik Peoples v Queensland (1996) 187 CLR 1 at 172-174; Western Australia v Ward (2002) 213 CLR 1 at 117-122 [157]-[168].
11. The King v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 432 (Latham CJ); [1944] HCA 42.
12. Re Minister for Immigration and Multicultural Affairs; ex parte Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [133]-[136] (Gummow J).
13. (2004) 61 NSWLR 707; [2004] NSWCA 422 at [30]-[63].
14. Pallas Newco at [46], quoting Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443.
15. Pallas Newco at [48].
16. Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [12], adopting the reasoning of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391; [1938] HCA 7.
17. Project modification approval, Schedule 2, cl 4.
18. Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 4) [2019] NSWLEC 56 (costs judgment).
19. See [57] below.
20. Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6]-[8].
21. (2008) 72 NSWLR 504; [2008] NSWCA 209.
22. [2007] NSWCA 343 at [4] and [30] (Giles JA).
23. [2015] NSWCA 199; 208 LGERA 418 at [6].
24. [2011] NSWCA 328; 284 ALR 619 at [53]-[59].
25. Dillon at [54], [55] and [58].
26. Dillon at [57].
27. [2010] NSWCA 24; 14 BPR 27,549 at [102]-[104] (Handley AJA, Tobias and Campbell JJA agreeing).
28. [2014] NSWCA 23; 92 ATR 274 at [23].
29. [1999] 2 VR 353; [1999] VSCA 99 at [62], [66].
30. Courts Legislation Miscellaneous Amendments Act 2002 (NSW), Sch 3, item 3.5.
31. (1980) 144 CLR 13 at 35-36; [1980] HCA 13.
32. (1998) 193 CLR 72; [1998] HCA 11.
33. (1980) 144 CLR 13 at 35-36. See also Australian Conservation Foundation v Forestry Commission (1988) 76 LGRA 381 at 386; Kerr v Verran (1989) 28 IR 179 at 206; Vidler v Secretary, Department of Social Security (1995) 61 FCR 370 at 382-383.
34. Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 at 605.
35. LEC tcpt, 18/09/18, p 58(35).
36. Tcpt, p 75(45).
37. Tcpt, p 117(27).
38. Tcpt, p 131(15).
39. Tcpt, p 132(11).
40. See fn 18 above.
41. Costs judgment at [9], [10].
42. [2004] NSWLEC 434; 136 LGERA 365 at [15].
43. Costs judgment at [62].
44. Costs judgment at [43]-[48].

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