Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd - [2019] NSWLEC 56 - NSWLEC 2018 case summary — Zoe

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Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd

[2019] NSWLEC 56

Land and Environment Court (NSW)|2018-12-20|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-12-20

Before

Robson J

Catchwords

(2004) 136 LGERA 365 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39
(2010) 172 LGERA 157 Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S)
[1998] HCA 11 People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 R v Australian Broadcasting Tribunal
Ex parte Hardiman (1980) 144 CLR 13

Source

Original judgment source is linked above.

Catchwords

(2004) 136 LGERA 365 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39(2010) 172 LGERA 157 Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S)[1998] HCA 11 People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 R v Australian Broadcasting TribunalEx parte Hardiman (1980) 144 CLR 13[1980] HCA 13 Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96 Waters v P C Henderson (Aust) Pty Ltd [1994] NSWCA 338

Judgment (31 paragraphs)

[1]

Judgment

In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3) [2018] NSWLEC 193 ('primary judgment'), I dismissed the summons and ordered the applicant ('Council') to pay the costs of the first respondent ('HVEC') and the second respondent ('the Secretary') unless an alternative order was sought within 28 days.
On 20 December 2018, Council filed submissions seeking an order that "Each party bear its or her own costs" pursuant to r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) ('LEC Rules').
The parties subsequently proposed that the matter be dealt with on the papers and in separate submissions filed on 15 February 2019, each respondent seeks an order that Council pay their costs as there is no reason to depart from the ordinary rule that costs follow the event.

[17]

Characterisation as public interest litigation

HVEC submits that the proceedings could not properly be characterised as public interest litigation. Rather, the proceedings concerned the construction of a development consent for the Mt Arthur Coal Mine according to well-established principles. According to HVEC, Council led no evidence in support of its public interest claims and instead seeks to rely entirely on the character of the proceedings.
HVEC contends that there is no general principle that when a council is an applicant, it is taken to be acting in the public interest for the purpose of determining an application for costs. Further, in the proceedings, Council set itself against the considered opinion and position of the Secretary, a senior officer of the executive government of the State.
HVEC submits that the proceedings were brought by a public body with financial resources and Council must be taken to have chosen to pursue the litigation, conscious that there is no general principle that a council might avoid paying costs merely because it is a council.
HVEC claims that the issues raised in the case turned heavily on the facts of the case, and the specific terms of the condition and the Rehabilitation Strategy.
Further, the fact that the proceedings related to a "state significant development", being the Mt Arthur Coal Mine, that the subject matter of the conditions in issue concerned rehabilitation of that mine or that the conditions were made pursuant to Pt 3A of the EPA Act does not necessarily mean the proceedings were public interest proceedings.
The fact that legislation enables a person to challenge the approval of a rehabilitation strategy under a development consent cannot automatically render the proceedings public interest proceedings, nor can it excuse the applicant from the cost consequences that flow from an unsuccessful case: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 ('Hastings Point Progress') at [45] and Caroona Coal at [26]-[27], [36].
While acknowledging that the proceedings may be seen to clarify that similarly worded consent conditions do not impose objective jurisdictional facts, HVEC cites Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 at [17] to suggest that when a party succeeds, there will often be a clarification of the law to some extent, however, this cannot be a rationale for departing from the usual rule as to costs.
HVEC challenges the proposition that the public interest in the proceedings extends to present and future residents, visitors and passers-by of lands surrounding the mines, and submits that it is difficult to reconcile the issues in the case, specifically in relation to whether the requirements in the condition were objective and whether the Secretary failed to take into account mandatory considerations or whether her state of satisfaction with the Rehabilitation Strategy was unreasonable, with the general public.
HVEC submits that because the Court was not asked to adjudicate the merits of the rehabilitation scheme or the appropriate standard of mining rehabilitation, Council's concerns that the rehabilitation was not being conducted appropriately and that the Secretary was not regulating the mine in the public interest were not relevant. Where the Court found that it was for the Secretary to reach a state of satisfaction about whether the Rehabilitation Strategy met the requirements in the condition, HVEC submits that it would be inappropriate for the Court to find that Council's conception of the public interest should guide the Court as to how it should exercise its costs discretion: Shellharbour City Council v Minister for Planning (No 2) [2012] NSWLEC 96 ('Shellharbour') at [22]-[23].

[20]

Characterisation as public interest litigation

The Secretary contends that the considerations in Engadine relating to public interest are not determinative: Caroona Coal at [41].
The Secretary notes that a judicial finding has implications which extend beyond the immediate parties and that this is merely a consequence of the role of courts in interpreting statutes or instruments. It does not necessarily warrant a departure from the usual costs rule. The Secretary submits that this is particularly so in cases heard in this Court as the public has an interest in ensuring government decision-makers are accountable, that their decisions are made pursuant to law, and that legislation creating public rights and duties is adhered to: Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132 ('Anderson') at [18]-[19].
The Secretary contends that the fact that litigation is commenced in Class 4 of the Court's jurisdiction is insufficient to conclude that the proceedings were brought in the public interest: Shellharbour at [13].
Further, the Secretary maintains that a mere general public interest in the matters litigated is insufficient to justify a departure from the usual costs rule: Caroona Coal at [13], [56] and Anderson at [11]. The Secretary submits that the public interest as articulated by Council is expressed at a high level of generality and is insufficient to enliven the Court's discretion under r 4.2(1) of the LEC Rules.
Despite acknowledging that the proceedings may be relevant to the construction of other, similarly worded consents, the Secretary contends that Council's claim ultimately turned on a narrow and discrete question of interpretation.
The Secretary relies on the reasoning of Craig J in Shellharbour at [22]-[23] to illustrate that different bodies, both exercising their powers in the public interest, may find themselves opposed in certain circumstances. If the Court determines that the Secretary's participation in the proceedings is consistent with the Hardiman principle, the Court should not seek to determine which of the public interests represented by Council and the Secretary should prevail.
The Secretary submits that her role in the proceedings was confined to the construction of the conditions of the Modified Project Approval.

[25]

Characterisation

Using the considerations of Lloyd J in Engadine noted at [14] above which provide some guidance in relation to whether the proceedings may properly be characterised as public interest proceedings, I find as follows.
First, I accept that the proceedings concerned a condition of a project approval that related to the rehabilitation of a sizeable area of land that had been disturbed by coal mining and there is no doubt that the purpose of the condition was to facilitate rehabilitation. However, I do not find this matter alone to be determinative of the public interest. Properly understood, the gravamen of the proceedings was whether the Secretary had jurisdiction to be satisfied that the rehabilitation strategy complied with the relevant condition (see pars [8] and [155] in the primary judgment for context).
Second, in relation to the "width" of the public interest, given that the proceedings primarily concerned the construction of a particular condition, I do not consider Council's submission that this determination extends to present and future residents, visitors and passers-by of lands surrounding the mines to which such conditions apply, to be compelling. The fact that the Mt Arthur Coal Mine was designated as a State significant development is a matter which I consider relates primarily to the process by which development proposals for coal mines are dealt with and no more. Further, whether litigation bears a public interest character is not determined by the degree of interest in it shown by members of the public, but objectively by the extent to which it serves the public interest: Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 (S); (2016) LGERA 201 at [39].
In relation to the third and fourth considerations, whilst there can be little doubt that Council was motivated to commence proceedings as it harboured a genuine concern that the rehabilitation of the mine was not being conducted appropriately, this is not sufficient, either on its own or in combination with the other considerations, given my findings below regarding the essential nature of the proceedings (i.e. the construction of a condition of approval in relation to a rehabilitation strategy). Further, I do not consider that the suggested "enforcement" of the rule of law is significant in these circumstances. Council has no regulatory function with respect to either the development itself and/or the manner of rehabilitation. Council's role was confined to consultation with the consent authority.
Fifth, I accept, although I do not consider it determinative, that Council had no financial or proprietary interest in the outcome of the litigation.
In light of my findings (using the Engadine considerations), I have doubts that the proceedings could properly be characterised as public interest proceedings. I have formed this view not simply for the reason that they "concern the construction of a development consent" as suggested by HVEC, however this is a matter which I consider to be of some importance. It can comfortably be said that the principles in relation to the proper construction of development consents (and conditions attached thereto) are now well-established.
There is no general principle that when a council is an applicant it is taken to be acting in the public interest. This is particularly so where, as in the present case, Council is challenging the position (referred to by HVEC as the "considered opinion") of the Secretary, a senior officer of the executive government of the State.
Further, while not determinative, I accept that the proceedings were brought by Council, a public body with financial resources that would have been well aware that there is no general principle that it might avoid paying costs associated with an unsuccessful case merely because it is a public body.

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd

At a glance

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Source

Catchwords

Judgment (31 paragraphs)

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Legislation Cited (4)

Cases Cited (21)

Cited By (4)