A presumptive rule or practice that costs will not ordinarily be awarded in Class 1 merits review proceedings in the Land and Environment Court is an impermissible fetter on the costs discretion under s69 of the Land and Environment Court Act. The characterisation of proceedings as 'Class 1' or 'merits review' is too broad; the nature of the specific proceedings must be considered, and proceedings where a citizen resists the imposition of a liability are materially different from proceedings seeking a consent or licence. The Court of Appeal has power under s57(2)(b) to exercise the costs discretion itself where no new findings of fact are required, overruling Maurici on this point. Where an appeal on costs has been commenced before an amendment to costs rules takes effect, the pre-amendment rules apply.
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