It was the last working day before Christmas 2023, and I got the call that the Land and Environment Court was ready to hand down its judgement on NPA’s appeal against the Snowy 2.0 amendment to the Kosciuszko National Park Plan of Management. Four-thirty pm, moments before the court closed for the year, the Chief Justice announced that he was dismissing NPA’s case. The Minister’s decision to remove the prohibition on the construction of new transmission lines through Kosciuszko, just for Snowy 2.0, was upheld.
Our attempt to stop the bulldozers from clearing swathes through the National Park had failed.
Over all the long months of legal debate, summons, submissions and court appearances, I truly thought that I had cultivated a professionally dispassionate view of the proceedings. Turns out that was a load of rubbish, and all of the team were devastated by the unexpected outcome. An ‘unwelcome’ Christmas present indeed.
NPA went to court because we were convinced that it would help protect Kosciuszko National Park from unnecessary harm. That case was only possible because of the generous support of our members. The purpose of this article is to offer our most sincere thanks for that support.
That thanks begins with fully explaining why we took the extraordinary step of taking the Minister for Environment to court. Along the way I’ll touch upon what the judgement means for Kosciuszko, for future developments on park and reserve management planning.
The story of how we ended up in the Land and Environment Court has to begin with the truly exceptional character of Kosciuszko National Park. Amongst nearly 900 Protected Areas across NSW it is easy to overlook how special Kosciuszko really is.
The remarkable Kosciuszko National Park
At over 690,000 hectares, Kosciuszko is by far the largest National Park in NSW, contributing nearly 10% to the total National Park estate. Almost half of Kosciuszko, 300,000 hectares, is in such a natural condition that it has been declared as Wilderness. The National Park is named after the highest peak on the Australian continent and the extensive alpine habitats are the foundation of status as a biosphere reserve and a National Heritage Place. Many of the alpine habitats and species found in Kosciuszko exist nowhere else on planet Earth.
Despite these wild places and exceptional natural and cultural values, much of the park has been, and continues to be, heavily impacted by human activity. The alpine habitats are extremely vulnerable to climate change, not least through the increased threat of large-scale wildfire. Historic land clearing and grazing, which favoured the establishment of flammable scrubby species at the expense of more water dependant species, have exacerbated the number and intensity of mega-fires. Feral species, notably but not only feral horses, are also an agent of widespread environmental damage.
Less remarked upon, perhaps because it is now taken for granted, are the public utilities and recreational infrastructure that sprawl across much of Kosciuszko National Park. Historic prospecting, mining and grazing all impacted the alpine landscapes, but they pale when compared to the alpine resorts and the truly massive structures that compose the Snowy Mountains Hydro-electric Scheme. No other National Park in Australia has been so affected by large scale clearance, roading, access tracks, quarries, dam walls, inundated catchments, tunnels, pipelines, spoil heaps, transmission towers and perpetually cleared easements than Kosciuszko.
I first got some sense of the true scale of the Snowy Mountains Scheme, and the way in which it sits upon Kosciuszko, around 15 years ago. At the time I was doing a stint as the director for the National Parks and Wildlife Service ‘Metro and Mountains’ branch. The regional manager for Kosciuszko, the highly regarded Dave Darlington, decided he couldn’t afford to work with someone who had no clue about his patch and invited me down for a bit of familiarisation.
Dave and I spent several days travelling and discussing the ‘hot issues’ around Kosciuszko. I remember being struck that, while matters such as the resorts, horses and fire all figured in our discussions, the really big issues all revolved around the Snowy Mountains Scheme. Some of those issues were somewhat positive, such as the work that was being done to rehabilitate a selection of the former Snowy Hydro quarries and villages in the park. Others related to the challenges of inheriting maintenance responsibility for construction roads that were never designed for visitor access. And then there were the management challenges that came from visitation around the ‘anything goes’ dam impoundments.
The aspect of Snowy Hydro’s operation I found most confronting was relatively tiny in terms of physical footprint in the park. It was the towers Snowy Hydro use to disperse the chemicals for their cloud seeding program. Snowy Hydro proudly proclaims that this cloud seeding increases rain across ‘their’ catchments by around 14%.
Whatever you think about the changes to rain regimes the towers impose, they delivered a decidedly chilling message- this is a landscape where engineers, not nature, rule.
I was left with the understanding that Kosciuszko is light years away from being a typical National Park. A truly exceptional place in conservation terms, but also one challenged by the demands of tenants that sat very heavily on the alpine landscape.
I suspect that the inherent difficulties of resolving the different perspectives on the value and purpose of Kosciuszko National Park were one of the reasons why so much effort was put into the preparation of the 2006 Plan of Management (POM). Within NPWS, that Kosciuszko POM was widely regarded as the absolute benchmark for reserve planning. Not only was it drafted by a well-resourced team of planners, but their work was informed by a comprehensive assessment of the conservation values of the park by a highly reputable and Independent Scientific Committee. An expensive process, but an exceptionally thorough planning process that carefully considered the conservation values of the park, the threats it faced and the policies, strategies and operations that were required to pass Kosciuszko onto future generations in as good or better condition.
One of the threats that the Plan of Management identified was the network of overhead transmission lines throughout the park. Most of the lines send electricity from the power stations to the national grid, while a few provide power to the system or the resorts.
The impacts of these powerlines are much more intense than might be imagined when you think of lines spanning valleys between ridgetop towers. The reality is that every one of those towers needs a cleared base and an access road for construction and ongoing maintenance. In most areas the towers don’t span valleys, but hold the lines at a constant height above the ground. In such situations the easements either side of the powerlines are regularly slashed or cleared to reduce the potential for arcing during bushfires. Those cleared easements are generally 70 metres wide and, combined with all the access tracks, have collectively cleared thousands of hectares of natural habitat across the park.
Damaging as the habitat loss is, the vast geographic spread of the lines is in many ways even worse. The lines break the connectivity of habitats, making them less useful as habitat for many cryptic species and creating pathways for predators, weeds and arsonists to wreak havoc across the National Park.
The 2006 POM looked at the historic damage caused by transmission lines and came to an unavoidable decision- enough was enough. The result was that the final, approved POM included two very straightforward, unambiguous policies about transmission connections through Kosciuszko. Both hinged on the judgement that underground lines cause far less environmental damage than overhead transmission. The logic was irrefutable, underground lines don’t need the wide cleared easements of overhead lines because they aren’t vulnerable to wildfire.
One policy was that, wherever feasible, existing overhead lines should be replaced by underground lines. The second was an outright prohibition of the construction of any new overhead transmission lines and a requirement that new lines be installed underground.
An eminently sensible solution. The POM recognised that there is a public interest in the operation of the Snowy Mountains Scheme, while putting in place measures to ensure that future expansion or renewal of an essential part of the scheme, transmission connections, was done in a way that inflicted the least possible damage on the National Park.
Most importantly, both Snowy Hydro and TransGrid (which owns the NSW power grid) were involved in the preparation of the POM and were fully aware of these requirements.
Moving forward 13 years, and the Turnbull Government was coming under increasing pressure to actively support the shift to renewable energy. Prime Minister Turnbull responded by announcing the nation’s largest, and as it emerged, most expensive and least efficient, battery. Snowy 2.0.
The announcement of Snowy 2.0 was enthusiastically endorsed by the NSW Government. They snapped up the offered billions to sell the state’s share of Snowy Hydro and quickly declared the project as Critical State Significant Infrastructure. This had a profound effect on Snowy Hydro Corporation. They were no longer just a system operator and park tenant, but were suddenly responsible for a $2 billion construction project (that is now $25 billion). After more than a half century of the Snowy Mountains Scheme rumbling along as an ongoing operation, suddenly the stage was set for a vast construction site in the alps.
Ironically, at much the same time as this grand vision was being hatched in Canberra, the Australian National University was publishing a study of opportunities for pumped hydro systems in eastern Australia. The report, which deliberately avoided national parks and other areas of high conservation value, identified 20,000 different sites where pumped hydro systems could be installed.
This was also a time of rapid change in the uptake of roof top solar, home batteries, distributed smart networks and, most dramatically, the scale and efficiency of battery storage. In other words, notwithstanding the Commonwealth and NSW Government’s enthusiasm for Snowy 2.0, the project launched just as it was becoming clear that there were many superior alternatives.
NPA’s primary objective is to protect our National Parks. As an organisation we certainly didn’t want to get in the way of the transition to renewable energy, which is essential for reducing runaway climate change and all the threats it brings to nature. Yet perversely, the first recourse of the Commonwealth Government was to trash a National Park!
NPA worked swiftly to build a coalition of academic, industry and environmental experts who compiled and articulated the evidence for abundant, cheaper and more effective energy storage options than the Snowy 2.0 proposal. Our motivation was to avoid massive damage to Kosciuszko National Park. Our argument was that there were many and better alternatives.
It is too easy for conservation advocates to bemoan the capacity for governments to overwhelm all opposition to their pet projects. It is also the uncomfortable reality. Despite all of our discussions, reports, media and submissions, the statutory planning approvals were issued by the NSW and Commonwealth Governments. The result is that construction began on the largest infrastructure project in Australia, in a National Park. It has since become undeniable that Australian taxpayers will carry the burden of a political project that technological advances have already rendered into an infrastructure white elephant.
Throughout all the frustration with this planning juggernaut there was one thread of relief. At least Snowy 2.0 would not require any more clearing for overhead transmission lines, because the proponents knew full well that they were legally required to put them underground. And after all, one of the tactics Snowy Hydro used to promote the project was to emphasise that most of the works were taking place below ground in what they described as one of the biggest tunnelling projects in the world. So of course, we expected that the lines would also go underground.
That is, until we realised that Snowy Hydro had no intention of complying with the Plan of Management. What soon emerged was that TransGrid had been instructed to prepare an Environmental Impact Statement (EIS) not for an underground connection, but for old fashioned overhead lines. TransGrid even proudly proclaimed in their EIS that the NPWS had assured them that the POM would be amended to remove the requirement for the new lines to be placed underground.
A shocking discovery to say the least. I have no doubt that this move was motivated by two factors: firstly, Snowy Hydro’s determination to avoid the additional expense of building underground lines; and secondly, the supreme arrogance that came with Government support for the broader project. Hubris and corporate balance sheets won out over nature and the National Park.
Even in the face of such blatant provocation NPA began by ‘playing the game’, using all available opportunities to negotiate a less destructive outcome. We met with Commonwealth and State Ministers and their departments; strengthened our coalition of experts in the fields of economics, engineering and environment; prepared detailed submissions on the EIS, draft amendment to the POM and every other exhibited planning document; and even appeared before parliamentary committees to argue our cause. Our coalition of experts published open letters to the Prime Minister and Premier. The media got on board and our arguments were widely covered in regional, state and national outlets.
All to no avail. It was only once we had exhausted all the engagement options in our state’s ‘open and transparent’ planning system that we made the hard decision, to go to the courts to stop this wholly unnecessary pillaging of Kosciuszko.
The Snowy 2.0 amendment to the Kosciuszko POM
A major factor in NPA’s decision to go down the legal route was genuine dismay with the way in which the National Parks and Wildlife Service handled the amendment to the Kosciuszko POM. As noted above, the current POM prohibited any new overhead transmission lines. If they were to go ahead then the POM needed to be changed.
The National Parks and Wildlife Act stipulates a set of statutory steps that must be taken to make or amend a POM. A key step in that process is the public exhibition of a draft amendment. In the case of an amendment, that means a document that explains why the plan must be changed, what changes are proposed and how they affect the overall objectives of the original POM. A series of 23 matters that must be considered before making or amending a POM are set out in Section 72AA of the Act. They are all basic planning questions: what are the values of the park, what threats does it face and what’s going on in the adjoining areas?
You might think, given that the 2006 POM banned any new overhead lines, that the exhibited amendment would need to make a really solid case for overturning the ban. Most particularly, we expected demonstration that the earlier planners had overestimated the adverse impacts and that there would be no long-term damage to the National Park. NPA was especially keen to see how NPWS proposed to manage adverse impacts on habitat connectivity and integrity, values that are fundamental characteristics of Protected Areas and very poorly understood in the broader environmental planning system.
Rather than an argument of based on environmental grounds, what went on exhibition was the confoundingly bureaucratic statement that
This plan of management amendment ensures that Snowy 2.0 works enabled by the SHC Act, approved under the Environmental Planning and Assessment Act 1979 (EP&A Act) and authorised under the NPW Act, can proceed in accordance with the NPW Act and the plan of management after February 2023.
Leaving aside the Orwellian circularity of amending a plan so that works can proceed in accordance with that plan, when stripped to the core the amendment was simply saying that the Snowy 2.0 project must proceed without any limitations under the POM.
Interestingly, rather than arguing that the prohibition on overhead transmission was misconceived or unnecessary, the amendment actually retained the prohibition, but with a huge proviso:
Require all additional telecommunication and transmission lines to be located underground, except those constructed as part of the Snowy 2.0 Project.
In other words, the original prohibition got it right. Yet the very first time the prohibition was put to the test, it was set aside.
There is no doubt that, beyond the Snowy 2.0 transmission project, this appalling precedent will be taken as an absolute green light for pushing overhead transmission lines through National Parks wherever it offers the quickest, least contentious and easiest route. If the ban didn’t hold in Kosciuszko, where will it hold? Chillingly, we are already seeing signs of exactly this expectation as EnergyCo plans out the transmission connections to Renewable Energy Zones across NSW.
Off to the Land and Environment Court
Heading back to our decision to commence legal proceedings, there really wasn’t any choice. Not only had an unnecessary, most environmentally damaging option been chosen for the transmission connection through Kosciuszko National Park, but a critical element of the approval chain was a disrespectful, inappropriate and legally questionable amendment of a POM.
NPA has invested time, energy and resources into improving the content and quality of POMs for more than 67 years. Our members have put in thousands of hours reviewing POMs in their roles on Regional Advisory Committees and the National Parks Advisory Council, along with endless hours of writing submissions by branches and individual members. This amendment represented an absolute low point in Protected Area planning in NSW, and the NPA Executive agreed unanimously that we had to take every possible step to stop the rot.
An important consideration at the time was the stark difference between the then Coalition Government and Opposition in relation to overhead transmission. In Opposition Labor made strong statements in support of undergrounding any transmission connections through Kosciuszko. While the decision to go to court was made before the 2023 State election, there was every expectation that, if there was a change of Government, our views would be supported. That hope proved in vain.
One of the really frustrating limitations on challenging Government decisions is that most matters, including the preparation of a POM, are not subject to merit-based appeals in NSW. In other words, you can’t just argue that the Minister made a poor decision. The only option is to seek what is known as judicial review. This requires demonstrating, to the satisfaction of the Land and Environment Court, that a serious error was made in administering a statutory process. Otherwise stated, Government made a mistake in implementing their own legislation.
NPA has been incredibly fortunate in being supported by a small team of legal experts, notably the eminent environmental lawyer Bruce Donald and Senior Counsel Michael Hall. They embarked on a deep dive into the legal steps involved in the making of a POM, and identified clear flaws in how the Snowy 2.0 amendment had been managed by NPWS. Our assessment was that the case had good prospects of success, after which the NPA Executive made a final decision to head to court.
The court case started with a hearing to establish NPA’s standing and hear our application for a Protective Costs Order, basically a cap on the amount of legal fees the winning side could claim from the other. We were pleased with the initial outcome, with the judge confirming that NPA’s case was in the public interest and that an order was warranted.
The main case involved two days of hearings before the Chief Justice of the Land and Environment Court. The NPWS Regional Director and I gave evidence on behalf of our respective organisations.
The judgement
And so to last Christmas’s decision. I’m not a lawyer and would encourage everyone to have their own look at the full text (LINK). But there are a couple of issues that really leap out, issues that reverberate far beyond the boundaries of Kosciusko.
The first relates to the way in which NPWS consults with the public about POMs. NPA takes the unremarkable view that an exhibited plan should explain what is special about a particular park, what threats it faces and what protections and management programs are required to maintain its values. The list of matters in Section 72AA of the National Parks and Wildlife Act provides a great guide to the relevant issues. In the case of an amendment, we expect that the exhibited document very clearly describes the nature of the proposed change, why it is required and how this might potentially impact the broader objectives of the existing plan.
Unfortunately, there are several elements of the court’s decision that appear to undermine these very basic and reasonable expectations. My interpretation is that the decision implies that this information is only really required for the Minister to issue her or his approval of the POM. Further, to the extent that NPWS is required to consider these matters, it is sufficient for a senior delegate to have thought about them. In other words, the decision refutes the assumption that there is a direct relationship between what is disclosed to the public in an exhibited draft and what is put before a Minister for decision.
A terrible outcome for transparency and accountability
The other really troubling aspect of the decision is that it ratifies what we consider a very poor planning practice, which is to ‘outsource’ the assessment of whether a proposal threatens the core values of a National Park to a completely divergent process under an EIS. You might imagine that an EIS is an incredibly thorough and reliable document, however the reality is that they are totally unsuited for assessing the significance of impacts on a Protected Area. Key considerations for National Parks, such as cumulative impacts, loss of ecological integrity, the loss of ‘common’ threatened species and distribution of pests and weeds, are entirely discounted as relevant in an EIS. By endorsing reliance on external assessment processes, the decision fundamentally undermines the purpose and integrity of POMs.
What next?
So where does the sorry saga end? Every bold action risks unintended consequences, and if nothing else the case has revealed disturbing truths about the tokenism of the public consultation processes for POM. That truth about ‘consultation’ has been increasingly evident in recent years. It doesn’t seem to matter how well-argued the submissions on draft POMs, or how much the community opposes developments in parks, again and again NPWS ignores inconvenient views and their original proposal gets approved by the Minister of the day. Recent examples include commercial accommodation in the Gardens of Stone and the 40% increase in resort beds in Kosciuszko. Both were overwhelmingly opposed in submissions.
The bleakest interpretation of the judgement is that it confirms that this dismissive approach to community consultation is legally sound. The is no real obligation for meaningful consultation and the Minister has absolute authority to make decisions irrespective of whether consultation has been adequate.
As soon as the politicians returned from their Christmas break, NPA met with the Minister for Environment’s office to discuss the outcome. While there was no hint of wavering in their support for overhead lines, we were able to extract agreement that there are major problems with the way in which POMs are being exhibited. NPWS committed to working with NPA to review and reform POM processes.
Getting the public engagement aspects of POMs back on track is only one of the challenges raised by the judgement. The other problem raised by the judgement is the ‘outsourcing’ of POM issues to external planning processes, such as an EIS or masterplan. My strong sense is that it will ultimately take legislative change to restore POMs to the pre-eminent place they must occupy in relation to National Parks and other Protected Areas. POMs are the only fit for purpose tool for managing these special landscapes, and NPA has a lot of work ahead to return them to that central role.
Returning to Kosciuszko and the overhead transmission lines, all I can say is that they aren’t built yet, and the court’s judgement notwithstanding, NPA won’t stop using every avenue at our disposal to oppose this needless destruction in the park. Equally importantly, we now know that our worst fears of a proliferation of overhead transmission lines across NSW Protected Areas are well and truly on the agenda.
Going to court was a sobering process, but we just can’t afford to stop doing everything we can to protect our parks from such unnecessary damage. This was only round one.