SOLICITORS:
N/A (Applicant)
Department of Planning, Industry and Environment (First & Second Respondents)
Allens (Third Respondent)
File Number(s): 20/242181
[2]
EX TEMPORE Judgment
The Applicant Mr Anderson has commenced judicial review proceedings challenging the approval of the Snowy Hydro 2.0 Project (the Project). The First Respondent Robert Stokes trading as the Minister of Planning and Public Spaces (the Minister) approved the development. The Second Respondent the Department of Planning Industry and Environment (the Department) is also joined as a party. The Third Respondent Snowy Hydro Ltd (SHL) is the proponent of the project. The Commonwealth Government is the sole shareholder of SHL. Mr Anderson is representing himself at present.
The summons commencing these proceedings seeks declarations that: the environmental impact statement (EIS) for the Project did not adequately address the Secretary of the Department's (Secretary) environmental impact requirements; the decision to place the EIS on public exhibition be set aside; that development consent CSSI 9687 issued 20 May 2020 is invalid, and consequential orders. The three decisions to be reviewed are, firstly, the decision of the Department to not request SHL to provide additional information prior to exhibiting the EIS, secondly, the decision of the Department to publicly exhibit the EIS and thirdly, the decision of the Minister to approve the Project. The stated grounds in the summons include the EIS failed to consistently consider the precautionary principle and failed to comply with s 221ZX of the Fisheries Management Act 1994 (NSW).
SHL has filed a notice of motion dated 14 September 2020 seeking expedition, effectively a hearing date in November 2020, earlier than would usually be allocated. Principles to consider in relation to such applications are identified in Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122 (Pittking) citing Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42-43 as follows:
(1) Is this the appropriate Court for the litigation, in particular:
(a) does the litigation fall into the work normally done by this Court; and
(b) is there a sufficient nexus with New South Wales.
(2) Is there a special factor involved which warrants expedition. Usually these factors will be:
(a) the loss of witnesses if the case is not fixed at an early date;
(b) matters of public importance;
(c) that the subject matter of the litigation will be lost if it is not heard quickly;
(d) that the litigation to date has been delayed through no fault of the applicant;
(e) that the applicant is suffering hardship not caused through his own fault;
(f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date);
(g) the nature of the case (for example, ejectment, child custody); and
(h) that there are large sums of money involved.
…
(3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed?
(4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted.
[3]
Evidence
SHL relies on the affidavits of Mr Britton affirmed 14 September 2020 and Mr Thomson affirmed 15 September 2020.
In relation to public interest SHL relies on the affidavit of Mr Britton. Mr Britton is general counsel at SHL. His affidavit outlines generally the substantial scope of the Project including its declaration on 7 March 2018 as critical State significant infrastructure (CSSI) pursuant to Sch 5 cl 9 of the State Environmental Planning Policy (State and Regional Development) 2011. He cites a NSW Government media release dated 8 March 2018 in which the importance of the Project to the future security of the energy system, the economy and the environment is identified. The Secretary's Environmental Assessment Report dated 19 May 2020 for the Project states that the Project is critical for energy security and reliability in NSW given the amount of energy it will generate for reasons identified at pp 35-36 of that Report. The NSW Government has issued a media release dated 28 April 2020 announcing the first 24 projects to undergo a fast-tracked assessment process as part of the NSW Government's Planning System Acceleration Program, tranche one. The Project is the first of the 24 projects to be fast-tracked to help kickstart the State economy given the challenge of the COVID-19 virus. Fast-tracking of projects is said to be key to economic recovery. A media release dated 21 May 2020 issued by the NSW Government identifies that up to 2,000 jobs will be created and $4.6 billion injected into regional NSW with the Project's approval. An earlier hearing date is sought outside the usual court timetable.
In relation to the effect of delay in the conclusion of these proceedings on SHL, it relies on the affidavit of Mr Thomson the commercial director of SHL. He outlines the proposed scheme and the steps in the approval process leading up to approval by the Minister on 20 May 2020. The Commonwealth government granted approval under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) on 29 June 2020. The construction program has been developed with the principal contractor Future Generation Joint Venture (FGJV). The notice to proceed for the main works component was issued in 28 August 2020 in a formal instrument of agreement. The effect of this agreement is that FGJV can commence the main works. The latest construction program is dated 31 July 2020. A summary of the forecast program to be completed between now and 31 January 2021 is identified at par 9 of the affidavit including site mobilisation and establishment, access roadworks and pioneer roadworks, portal excavation and support works, preparatory works for tunnel portals at Tantagara and Talbingo inter alia. The costs implications of delaying the project are identified in pars 10-12 and are substantial, being in the hundreds of millions of dollars. Were the project to be put on hold SHL is liable for a daily penalty of up to $600,000.
[4]
Submissions
SHL submits that, relying on the principles identified in Pittking, the matter is of public importance, as identified by Mr Britton's affidavit. There will be real prejudice to SHL caused by delay, as identified by Mr Thomson, if an earlier than usual hearing date cannot be found.
Mr Anderson stated that he wanted the opportunity to file his amended summons before the matter is set down for hearing. He did not accept that SHL would lose any costs as, if they do so because this Court case is successful, it will be because of fault in the approval process. The Court process will not impact on SHL unless it is in error. He would like to file an amended summons and have the matter relisted in a week to determine if expedition ought be granted. He did not accept there were any special factors warranting expedition.
[5]
Consideration
There are very limited hearing dates in the Court for the remainder of 2020, essentially only four days in November. This Court is the relevant court for the matter to be heard in. The issues identified by SHL's submissions and through the affidavit of Mr Britton attest to the significant matters of public interest at issue, given the substantial nature of the project and its role in the NSW economy according to the NSW Government.
Delay of the hearing until 2021, as will result if the usual Court timetable is applied, will have a substantial impact on SHL economically and also in the delivery of a very large project, as attested to in Mr Thomson's affidavit.
Mr Anderson is the Applicant and it is up to him to file the amended summons he says he wants to rely on. I appreciate that according to emails he has sent to the Court that he had difficulty finding a solicitor. According to his emails he has consulted two barristers. I am hopeful he can arrange appropriate legal representation.
The short minutes of order filed by SHL provide for an amended summons to be filed and otherwise make appropriate orders leading up to a hearing on 10-12 November 2020, the last remaining hearing dates left in the Court calendar in 2020.
I consider it is appropriate to exercise my discretion to order expedition and make the short minutes of order proposed which include setting the matter down for hearing on 10-12 November 2020.
[6]
Orders
The Court orders:
1. The Applicant serve an amended summons or before 30 September 2020.
2. If the Respondents consent to the grant of leave to file the amended summons, Orders (4) to (11) apply.
3. If the Respondents do not consent to the grant of leave to file the amended summons, the parties have liberty to apply to have the matter listed for further directions.
4. The First, Second and Third Respondents are to serve their response to the amended summons by 9 October 2020.
5. The Applicant is to serve its affidavits in chief and bundle of tender documents by 16 October 2020.
6. The First, Second and Third Respondents are to serve their affidavits in chief and bundles of any additional documents by 23 October 2020.
7. The Applicant is to serve a summary of argument (not exceeding 10 pages), and any affidavits in reply and bundle of any additional documents in reply, by 30 October 2020.
8. The parties are to confer and prepare a paginated Court Book with a table of contents in a while folder (or folders) containing the following sections with dividers between them:
1. a copy of the summons and each Respondent's response to the summons;
2. an agreed list (of competing lists) of the real issues for determination;
3. a summary of the Applicant's argument (not exceeding 10 pages);
4. the decision under review and the statement of reasons (if any) of the decision-maker;
5. any statement of facts able to be agreed between the parties;
6. an agreed chronology or, failing agreement, the parties' respective chronologies;
7. any agreed schedule of any relevant legislation provisions or, failing agreement, the parties' respective schedules of any relevant legislative provisions;
8. each party's list of objections (if any) to evidence;
9. spaces for the summary of the Respondent's argument and any summary of the Applicant's argument in reply (when filed).
1. The parties are to confer and prepare a paginated Evidence Book in a non-white folder (or folders) with a table of contents containing the following copy documents with dividers between them:
1. documents the parties jointly or separately propose to tender, with a table of contents indicating any objections to admissibility and the grounds;
2. any affidavits of the applicant's lay witnesses; and
3. any affidavits of the respondent's lay witnesses.
1. The Applicant file and serve the Court Book and the Evidence Book on or before 4 November 2020.
2. The Respondents file and serve a summary of the Respondent's argument (not exceeding 10 pages) on or before 6 November 2020.
3. The Applicant file and serve a summary of the Applicant's argument in reply if the Applicant considers a reply is needed (not exceeding 5 pages) on or before 9 November 2020.
(12A) The matter is listed for pre-trial mention on 3 November 2020.
1. The matter is fixed for three day hearing in the period 10-12 November 2020.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 September 2020
Parties
Applicant/Plaintiff:
Anderson
Respondent/Defendant:
Robert Stokes trading as the Minister of Planning and Public Spaces
Legislation Cited (2)
Environmental Protection and Biodiversity Conservation Act 1999(Cth)