https://www.caselaw.nsw.gov.au/decision/18c8eb11df25ede6b997dd92
Bruce Donald AM, senior environmental lawyer
Over the last five years I have worked with Ted Woodley, Gary Dunnett and the NPA Executive in a voluntary capacity providing legal advice on the Snowy 2.0 pumped hydro battery project. Members are well aware that from the outset the project was considered to be entirely misconceived economically, in its electrical engineering and transmission and involving serious environmental impact on Kosciuszko National Park.
In 2020 NPA, following legal advice, commenced a legal challenge to the Main Works of the project, reviewing the validity of the EIS process but, given the extensive dimension of such a review and the refusal of the government to consent to a protective costs order for the benefit of NPA, the exposure to legal costs regrettably led to a decision by NPA to discontinue that case.
In 2021 NPA engaged with the then Minister for the Environment, Matt Keane, seeking to prevent a proposed decision to approve overhead transmission lines for the project through KNP contrary to both the 50-year policy against overhead power lines in national parks and the specific prohibition in the KNP Plan of Management 2006. The previous government rejected NPA’s position and in September 2022 finally made the decision to approve the amendment to the POM.
NPA again commenced a legal challenge to the decision on the basis of the government’s failure to comply with the process in the NPW Act. This time the limited dimension of the case and NPA’s successful application for a protective costs order, not consented to by the new government but not opposed, meant that the NPA exposure to legal costs was within acceptable limits so the case was continued.
The case was heard by the Land and Environment Court in August and September 2023 and a decision rejecting NPA’s challenge was delivered on 22 December 2023. Gary Dunnett’s article in the last edition of NPA News poignantly covers the background and outcome of the case.
We consider the decision of the Land and Environment Court to be clearly in error both as to the correct interpretation of the Act in its application to amendment of Plans of Management (POMs) for National Parks and also as to requirements of the obligation to take the detailed environmental impacts into consideration.
Nevertheless, NPA has decided not to appeal the decision to the NSW Court of Appeal and the purpose of this article is to explain to NPA members both the legal detail of the case and why it was decided not to appeal.
Our case against that decision was simple and followed the clear wording of the National Parks and Wildlife Act governing amendments to POMs.
First, the Minister starts the process and the Secretary, ie the Department through NPWS, prepares the amendment.
S 73B …Amendment of …Plans of Management
(3) The Minister may, on the recommendation of the responsible authority [Secretary]–
(a) amend or alter a plan of management …,
(4) If the Minister proposes to amend or alter a plan of management, … the Minister is to instruct the responsible authority [Secretary] to cause the amendment, [or] alteration… to be prepared.
(5) The responsible authority [Secretary] is to cause the amendment [or] alteration… to be prepared as soon as possible.
…
Secondly, a long list of very important environmental impacts is to be ‘taken into consideration’ in the preparation of the amendment. (You are well familiar with these but their extent and importance merits repeating them here for the record.)
S 72AA Objectives and Content of [Amendment of] Plans of Management
(1) The following matters are to be taken into consideration in the preparation of [an amendment of ]a plan of management for land reserved under this Act–
(a) the relevant management principles,
(b) the conservation of biodiversity, including the maintenance of habitat, ecosystems and populations of threatened species,
(c) the protection and appreciation of objects, places and structures of cultural significance, and tracts of land,
(d) the protection of landscape values and scenic features,
(e) the protection of geological and geomorphological features,
(f) the protection of wilderness values and the management of wilderness areas,
(g) the maintenance of natural processes,
(h) the rehabilitation of landscapes and the reinstatement of natural processes,
(i) fire management,
(j) in the case of a plan of management for a national park, nature reserve or karst conservation reserve, the prohibition of the execution of any works adversely affecting the natural condition or special features of the park or reserve,
(k) the potential for the reserved land to be used by Aboriginal people for cultural purposes,
(l) the provision of opportunities for public understanding and appreciation of natural and cultural heritage values, including opportunities for sustainable visitor or tourist use and enjoyment of the reserved land,
(m) the adaptive reuse of buildings and structures,
(n) the appropriate (including culturally appropriate) and ecologically sustainable use of the reserved land, including use by lessees, licensees and occupiers of the land,
(o) the preservation of catchment values,
(p) the encouragement of appropriate research into natural and cultural features and processes, including threatening processes,
(q) the identification and mitigation of threatening processes,
(r) the statutory natural resource management, land use management plans and land management practices of land surrounding or within a region of the reserved land,
(s) the regional, national and international context of the reserved land, the maintenance of any national and international significance of the reserved land and compliance with relevant national and international agreements, including the protection of world heritage values and the management of world heritage properties,
(t) benefits to local communities,
(u) the social and economic context of the reserve so as to ensure, for example, that the provision of visitor or tourist facilities is appropriate to the surrounding area or that pest species management programs are co-ordinated across different tenures,
(v) the protection and management of wild rivers,
(w) the impact of the management and the use of land acquired under Part 11 on the reserved land‘s management.
Thirdly, the preparation of the amendment is to be published for a period of public consultation.
S 73A Public Exhibition and Consultation for [Amendment of] Plans of Management
(1) When [an amendment of] a plan of management is prepared, the responsible authority must give notice of the preparation of the plan in accordance with the regulations.
This accords with the long-established practice across planning and other processes that the environmental impact assessment is included in the material published for public consultation.
The NPA Opening Submission to the Court emphasised this:-
37. It follows that the proper interpretation of Part 5 is that:
(i) The relevant references to the ‘preparation’ of the plan of management, are references to the process undertaken by the Secretary prior to the exhibition of the plan or amendment for public consultation;
(ii) It is during that phase, and not later, that the s.72AA matters must be taken into consideration; and
(iii) The consideration given to the s.72AA matters informs and forms part of the consultation process.
48. As submitted … above, the consideration of the s.72AA matters and the reflection of that consideration in the amendment that is notified for public and expert comment is the means by which the conservation objectives of the NPW Act, and the management principles for national park land, are realised in a POM, and it is the POM that guides management of the Park. To omit the consideration of those factors at the relevant time removes the opportunity for the advisory committee, the Council and the public to give and for the Minister to receive advice as to whether to adopt an amendment. The Minister can only act after considering that advice. Parliament has made it clear that that process is essential to the making of a valid plan or amendment, and non-compliance therefore renders the challenged decision ineffective.
When this amendment to the KNP POM was published in February 2021, there was no mention at all of the list of matters in s72AA or how NPWS had taken them into consideration in the preparation of the amendment to inform the public during the exhibition process, bearing in mind this was the reversal for KNP of the underground transmission requirement carefully enshrined in the 2006 POM. The sole ‘reason’ given for the amendment was ‘to ensure that Snowy 2.0 construction and operations authorised under the Environmental Planning and Assessment Act 1979 and issuing of tenure under the NPW Act can be undertaken in accordance with the POM. That is, the POM needed to be brought in line with the overhead transmission lines proposed by Snowy Hydro and to be approved by the NSW Minister for Planning.
In its first response NPA pointed out the lack of adherence to the consideration of the s72AA matters when the amendment was prepared, and prior to the public exhibition process, but the government proceeded with the POM amendment process, only producing minimal documentation on the list of matters well after the public consultation period had expired. NPA put the government on notice that it contended any adoption by the Minister would therefore be invalid.
In the separate planning approval process the government then published an EIS dealing with some impacts but even that did not address the 72AA matters and in any event, it was after the consultation period on the POM process had begun.
At the time of the publication of the amendment in February 2021, the ALP policy was firmly against amending the POM which required the transmission lines to be underground. This was confirmed by the Hon Mick Veitch (ALP), NSW Legislative Council when he stated on 24 March 2022:
The current Kosciuszko National Park Plan of Management requires the telecommunication and transmission lines to be located underground. It is clear that the above-ground transmission lines are not permitted in Kosciuszko National Park, yet they are being pursued by Snowy Hydro and Transgrid. Labor believes these transmission lines should be put underground. … We also call on the Government to not circumvent the Kosciusko National Park Plan of Management and retain the requirement for the undergrounding of telecommunication and transmission lines in any new plan.
Accordingly, when the decision by the previous government was finally taken on 1 September 2022 to adopt the amendment, there appeared to be a sound political basis for taking legal action to have the decision declared invalid as an incoming Labor government could be expected to stand by its position.
One last step was to ask the government for any record of any consideration of the s72AA matters during the preparation of the amendment prior to its public exhibition. The refusal of the government to respond other than by the GIPA process led to some delay so legal proceedings were only commenced when the GIPA response revealed no record of any such consideration.
With the support of Senior Counsel, it was decided to commence proceedings in the Land and Environment Court. The first step was to seek a protective costs order to which the new government did not consent but which it did not oppose. The Court granted the order:- https://www.caselaw.nsw.gov.au/decision/1898a50f2c275325e95346c3
There was also the possibility that the new government, consistent with its policy and position, would not oppose the proceedings. That was not to be, and the new government strenuously defended the decision of the previous government.
During the case, NPWS then led evidence that the relevant officer preparing the amendment had the 72AA matters in his mind but he acknowledged that there was no record of his consideration. Nor was there evidence of any discussion within NPWS of the impacts and as noted there was nothing provided for the public consultation process detailing how NPWS had taken the matters into consideration.
In the context of the wording of the Act, which we read as very clearly requiring the impacts to be considered before the amendment went out for public consultation, and in the absence of any documented evidence of the consideration of the matters, we believed there was a strong case that it was completely insufficient to satisfy the detailed statutory requirements for an officer just to assert he had them in his mind.
It is standard practice in NSW planning processes involving public participation that a detailed evaluation of the environmental impact of the proposal is provided to the public by the proponent. This to enable an informed public consultation process and not just a box ticking exercise.
So how did the Court respond?
First it construed the Act as not necessarily requiring the environmental impacts to be taken into consideration before the public consultation and in order to inform the public. The Court made no mention of the NPA submission that this consideration is intended by the Act to form part of, and inform, the public consultation process. NPA considers this ruling contrary to the clear structure of the process in the Act.
Secondly, the Court ruled that even if NPA’s construction of the Act was correct, the mere evidence that the officer had the matters in his mind was sufficient to meet the requirement that they be ‘taken into consideration’. NPA considers this to be clearly incorrect given the obvious importance and detail of the 23 matters in s.72AA and the well-established practice in all planning of informing the public consultation.
That left NPA and its advisers with a decision as to whether to appeal the decision to the NSW Court of Appeal on the grounds that the Court was in error in its interpretation of the Act and in its determination of what is required both as to evidence of proper consideration and the provision of that to inform the public.
Because any successful appeal would still require the new government to maintain its policy and position against overhead lines and the amendment of the KNP POM, NPA engaged with the new Minister’s office only to come away with the clear acknowledgment that the new government would not stand by its position for this aspect of the Snowy 2.0 project. For that reason, and also because of a risk that appeal courts are hard to persuade on matters of evidence (ie in relation to the adequacy of the matters merely being in the officer’s mind), it was decided not to appeal.
This decision left NPA with substantial expense notwithstanding the decision of the government not to seek its costs within the limits of the protective costs order.
Suffice to say, NPA contends that the NPW Act needs urgent reform to make clear that the Court’s interpretation and application of the Act on a matter as important as amending a POM, the statutory instrument governing the most valuable protected conservation lands in the State, is overturned. The Act needs to ensure the same regime which applies elsewhere namely a detailed evaluation of the environmental impact of the proposed amendment which is provided to the public in the consultation phase.