Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216 Hearing dates: 24 and 25 July 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Before: Basten JA at [1]; Macfarlan JA at [99]; Leeming JA at [180] Decision: (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. Catchwords: ADMINISTRATIVE LAW – jurisdictional facts – whether conditions of project approval specified objective criteria, satisfaction of which was a precondition to the exercise of the decision-maker's powers

ADMINISTRATIVE LAW – unreasonableness – whether decision-maker's satisfaction with a mining strategy was legally unreasonable – whether decision-maker's view was at least arguable

CIVIL PROCEDURE – Court of Appeal – whether leave to appeal required against costs order where there is an appeal as of right against the substantive orders made at first instance - s 58(3)(c) Land and Environment Court Act 1979 (NSW)