Minister for Planning v Walker (No 2) [2008] NSWCA 334

Minister for Planning v Walker (No 2) [2008] NSWCA 334

The proceedings were plainly public interest litigation because they concerned ecologically sustainable development and climate change flood risk affecting coastal properties more broadly than the immediate development area, and were motivated by upholding the rule of law. Although public interest litigation alone was insufficient to displace the ordinary costs rule, additional factors justified a different order: the case raised a novel and reasonably arguable point about whether the objects in s 5 of the Environmental Planning and Assessment Act 1979 imposed mandatory requirements on the Minister, the point had been upheld at first instance, Ms Walker had established that the Minister...

Jurisdiction
Australia
Judgment Date
03 December 2008
Procedural Posture
Costs in Public Interest Litigation / Costs Determination After Substantive Appeal Decision, on Written Submissions
Outcome
Each party pay its own costs at first instance and on appeal.
Legal Topics
['public Interest Litigation' 'costs Following the Event' 'special Circumstances for Costs Discretion' 'ecologically Sustainable Development' 'climate Change Flood Risk']
['procedure' 'costs' 'environmental Planning Law'] ['public Interest Litigation' 'costs Following the Event' 'special Circumstances for Costs Discretion' 'ecologically Sustainable Development' 'climate Change Flood Risk']

Case Brief

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Procedural Posture

Costs in Public Interest Litigation / Costs Determination After Substantive Appeal Decision, on Written Submissions

Legal Issues

  1. 1 ['Whether the proceedings were properly characterised as public interest litigation.' 'Whether public interest litigation, together with additional factors, justified departure from the usual rule that costs follow the event.' 'Whether each party should pay its own costs at first instance and on appeal.']

Ratio Decidendi

The proceedings were plainly public interest litigation because they concerned ecologically sustainable development and climate change flood risk affecting coastal properties more broadly than the immediate development area, and were motivated by upholding the rule of law. Although public interest litigation alone was insufficient to displace the ordinary costs rule, additional factors justified a different order: the case raised a novel and reasonably arguable point about whether the objects in s 5 of the Environmental Planning and Assessment Act 1979 imposed mandatory requirements on the Minister, the point had been upheld at first instance, Ms Walker had established that the Minister...

Court Disposition

Each party pay its own costs at first instance and on appeal.

Orders

  • ['Each party pay its own costs at first instance and on appeal.' 'The costs order made at first instance against the Minister, Stockland and Villages should be set aside.']