National Parks Association of NSW Inc v Minister for Environment and Heritage

Land and Environment Court (NSW)|2023-08-03|Before: Preston CJ

Nature of proceedings and outcome

National Parks Association of NSW Inc (NPA) seeks to judicially review the decision of the Minister for Environment and Heritage (Minister) on 1 September 2022 to amend the Kosciuszko National Park Plan of Management 2006 (POM). Although the POM was amended in a number of respects, the only amendment challenged by NPA was to section 12.6, to allow for the construction of above ground, instead of underground, telecommunication and transmission lines in the national park as part of the Snowy 2.0 Hydro Project (Snowy 2.0 Project). The Snowy 2.0 Project will increase the generating capacity of the Snowy Mountains Hydro-Electric Scheme through the linking of Tantangara and Talbingo Reservoirs and the construction of an additional underground power station. As part of the project, additional electricity transmission lines will be constructed in the national park.
Section 12.6 of the POM, before amendment, required "all additional telecommunication and transmission lines to be located underground." The amendment of the POM made by the Minister excepted from this requirement the additional transmission lines for the Snowy 2.0 Project. The formal amendment was: "Remove: Require all additional telecommunication and transmission lines to be located underground. Replace with: Require all telecommunication and transmission lines to be located underground, except those constructed as part of the Snowy 2.0 Project."
The Minister's decision to amend the POM involved an exercise of the power in s 73B(3) of the National Parks and Wildlife Act 1974 (NSW) (NPW Act).That provision states: "(3) The Minister may, on the recommendation of the responsible authority - (a) amend or alter a plan of management from time to time, or (b) cancel a plan of management, or (c) cancel a plan of management and substitute a new plan of management."
The "responsible authority" is the Secretary of the Department of Planning and Environment (Secretary).
Before the Minister could exercise the power in s 73B(3) to amend the POM, the Minister had to instruct, under s 73B(4), the Secretary, as the responsible authority, to cause the amendment of the POM to be prepared. Under s 73B(5), the Secretary, as the responsible authority, was required to cause the amendment of the POM to be prepared as soon as possible.

Extension of time to commence proceedings

NPA commenced the proceedings for judicial review of the Minister's decision on 21 February 2023. The Minister's decision was made on 1 September 2022. Under UCPR r 59.10(1), proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. That end date would be 2 December 2022. NPA was therefore 2 months and 3 weeks late in commencing the proceedings.
NPA applied, under r 59.10(2), for the Court to extend the time for commencing the proceedings fixed by subrule (1). Under r 59.10(3), the Court, in considering whether to extend the time for commencing the proceedings, is to take account of such factors as are relevant in the circumstances, including: "(a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest."
Other factors of relevance to consider include: the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]; Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [19].
NPA submitted that time to commence the proceedings should be extended as: 1. it is a nature conservation organisation with a particular interest in the conservation and proper management of national parks and in challenging the Minister's decision to amend the POM to allow overhead transmission lines in Kosciuszko National Park as part of the Snowy 2.0 Project; 2. there is no prejudice to the Minister caused by the passage of time, if an extension of time to commence the proceedings were to be granted, or to any other person as the construction of the overhead transmission lines for the Snowy 2.0 Project is yet to commence and will not commence until after these proceedings have been determined; 3. the time at which NPA became aware of the Minister's decision was 30 September 2022, some 4 weeks after the Minister made his decision, when the NPWS sent an email to the NPA advising of the Minister's amendment of the POM; 4. the relevant public interest includes the conservation and proper management of the Kosciuszko National Park by continuing the existing prohibition on overhead transmission lines in the POM, which public interest is sought to be advanced by the judicial review proceedings; 5. the length of the delay is short, under 3 months; and 6. the reason for the delay has been explained by Mr Dunnett, NPA's Chief Executive Officer, as being that: first, NPA is a small, not-for-profit, nature conservation organisation with limited resources; second, NPA sought to access information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to ascertain the facts as to whether the Secretary did or did not take into consideration the matters in s 72AA(1) of the NPW Act before commencing litigation; and third, NPA made an inadvertent error in its first GIPA Act application by not seeking access to documents for the full period, necessitating NPA making a further GIPA Act application, which delayed NPA's access to the required information.
The Minister opposed the Court granting NPA an extension of time to commence the proceedings as: 1. NPA had advanced the substance of its ground of challenge in the proceedings that the Secretary had failed to consider the matters in s 72AA(1) of the NPW Act as early as 1 September 2021, a year before the Minister made the decision to amend the POM, and said it had obtained legal advice on the issue at that time; 2. NPA was aware that the 3 month limitation period ran from the date of the Minister's decision on 1 September 2022 and would expire on 2 December 2022 and sought the consent of the Secretary for an extension of time to commence the proceedings, which was not forthcoming; 3. the Minister is prejudiced in the sense of being deprived of the protection of the limitation period: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; 4. the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced: Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 at [7]; 5. NPA's inadvertence in making the GIPA Act requests did not explain adequately the delay in commencing the proceedings, especially where NPA had obtained legal advice on the issue before the Minister amended the POM; and 6. the lack of strength of NPA's argument.
I consider it is appropriate in the circumstances of this case to grant an extension of time for NPA to commence the proceedings for judicial review of the Minister's decision to amend the POM, for the reasons given by NPA.
NPA is a long-established, well-regarded, not-for-profit, nature conservation organisation committed to the conservation and proper management of protected areas, including national parks, in NSW. The Minister's decision to amend the POM for one of Australia's iconic national parks, Kosciuszko National Park, to overturn a long-standing prohibition on the construction of overhead transmission lines in order to allow additional overhead transmission lines for the Snowy 2.0 Project threatened, in NPA's view, the conservation and proper management of the park. The NPA had a legitimate interest in ensuring that the Minister's decision to amend the POM to allow overhead transmission lines had been made according to law.
The documents to which NPA had access, before and at the time of the Minister's decision, did not reveal that the Secretary had taken into account the matters in s 72AA(1) of the NPW Act before the amendment of the POM had been publicly exhibited. NPA believed that had the Secretary considered these matters, the Secretary might not have proceeded with the amendment of the POM.
However, NPA did not wish to commence litigation unnecessarily, and expose itself to the risk of an adverse costs order, without first checking whether the Secretary had in fact taken into consideration the matters in s 72AA(1). NPA made a GIPA Act application for documents evidencing the Secretary's consideration, if any, of the s 72AA matters. NPA's first application limited the time period of the documents. This error was not realised until the documents were produced. NPA made a second application extending the time period of the documents. Documents in response to the second application were produced only shortly before the 3 month time period for commencing proceedings expired.
NPA did not wish to commence the proceedings until it had again sought legal advice, based on all of the documents produced in response to both GIPA Act applications. That advice was forthcoming in the next couple of months. NPA commenced proceedings shortly thereafter on 21 February 2023.
This explanation for the delay in commencing the proceedings is cogent and reasonable.
The length of the delay is not long. From the date of the Minster's decision, it is 2 months and 3 weeks beyond the 3 month limitation period, but NPA was unaware of the Minister's decision for 1 month of the 3 month period as NPA was advised by the Secretary of the Minister's decision a month after the Minister's decision had been made.
The delay in commencing the proceedings has not caused any prejudice to the Minister, other than the formal prejudice of being deprived of the benefit of the protection of the 3 month limitation period, or to any other person. Construction of the overhead transmission lines for the Snowy 2.0 Project, enabled by the amendment of the POM, has not commenced. The delay in commencing the litigation has had no effect on the construction of the overhead transmission lines.
As the hearing of the application for an extension of time to commence the proceedings to challenge the Minister's decision, and the proceedings themselves, have been heard concurrently, I do not consider that my ultimate decision not to uphold NPA's challenge to the Minister's decision should influence strongly my decision as to whether to extend the time to commence the proceedings. On the face of NPA's challenge, as articulated in the summons, NPA's claim was clearly arguable. Further evidence was adduced by the Minister at the hearing which weakened NPA's claim on the facts. But this was not able to be known at the time NPA commenced the proceedings.
For these reasons, I will extend the time for commencing the proceedings to 21 February 2023, the day on which NPA filed the summons for judicial review.

The proper construction of s 73B(7) and s 72AA of the NPW Act

Determining the proper construction of s 73B(7) of the NPW Act will be assisted if the relevant part of the subsection is quoted again here: (7) Section 72AA, 73A, 74, 75 and subsections (1)-(6) apply to and in respect of an amendment, alteration or substitution of a plan of management in the same way as they apply to the preparation of a new plan of management.
The proper construction of s 73B(7) involves four issues: 1. identifying the object of the action of application of the specified sections of ss 72AA, 73A, 74 and 75 and subsections (1) to (6) of s 73B; 2. identifying the action of application of the specified sections and subsections; 3. identifying the connection between the action and the object of the action; and 4. identifying the way in which the specified sections and subsections apply to the object of the action.
The phrasing of the object of the action in s 73B(7) is important. The phrasing is not "the preparation of an amendment … of a plan of management." Rather, it is "an amendment … of a plan of management." The "amendment" of a plan of management refers to a broader process than the "preparation of an amendment" of a plan of management. The drafter of the subsection expressly referred to "the preparation of a new plan of management" at the end of the subsection, but did not use the word "preparation" in the description of "an amendment", which is the object of the action of application.
The "amendment" of a plan of management is a process that begins with the Minister instructing, under s 73B(4), "the responsible authority to cause the amendment, alteration or new plan of management to be prepared". The use of the definite article "the" in this subsection refers to the amendment, alteration or new plan of management the Minister may make under s 73B(3). Section 73B(3) vests power in the Minister to amend or alter a plan of management or cancel a plan of management and substitute a new plan of management. This power in s 73B(3) cannot be exercised by the Minister unless the Minister has instructed, under s 73B(4), the responsible authority to cause the amendment, alteration or new plan of management to be prepared.
This link in the language of subsections (3) and (4) establishes the points at either end of the process of amendment of a plan of management. Subsection (3) is the conclusion of the process - the Minister amends or alters a plan of management or substitutes a new plan of management. Subsection (4) is the commencement of the process - the Minister instructs the responsible authority to cause the amendment, alteration or new plan of management to be prepared.
In between these end points is a process of amendment. After the Minister's instruction under s 73B(4), the responsible authority causes the amendment of the plan of management to be prepared as soon as possible (s 73B(5)).
When a draft amendment of the plan of management has been prepared, the responsible authority gives notice of the amendment (s 73A(1) applied by s 73B(7)). The notice is to include the address of the place at which copies of the amendment of the plan of management may be inspected, the address to which representations may be forwarded, and the period within which representations may be made (s 73A(2) applied by s 73B(7)).
The responsible authority may consult with the bodies referred to in s 73A and ss 74 and 75 on the draft amendment of the plan of management, and those bodies may provide advice to the Secretary (ss 73A, 74 and 75 as applied by s 73B(7)).
The responsible authority after considering the representations made under s 73A and the advice received from the bodies consulted under ss 73A, 74 and 75, makes a recommendation to the Minister (s 73B(3)). The responsible authority is to provide the representations and advice to the Minister (s 73B(1) and (1A)) as applied by s 73B(7)). In making the recommendation to the Minister, the responsible authority may recommend that the amendment of the plan of management be altered in response to the representations and advice.
Finally, the Minister considers whether to amend the plan of management under s 73B(3). Before the Minister can do so, the Minister must have received and considered the recommendation of the responsible authority (s 73B(3)), the representations made under s 73A and the advice from bodies consulted under ss 73A, 74 and 75 (s 73B(1) as applied by s 73B(7)). If the Minister decides to amend the plan of management, the Minister may do so without alteration or with the alterations the Minister thinks fit or refer the amendment back to the responsible authority for further consideration (s 73B(1) as applied by s 73B(7)).
As this explanation reveals, the amendment of a plan of management is a process. It does involve the responsible authority preparing a draft amendment that can be publicly exhibited and consulted on, but that draft amendment can be revised by the responsible authority and altered by the Minister in response to representations made during public exhibition and advice received during consultation. The amendment of the plan of management does not cease at the stage of public exhibition and consultation but continues up to the Minister deciding to amend the plan of management under s 73B(3).
Understanding that the object of the action of application of the specified sections and subsections is a process of amendment of a plan of management, from the commencement under s 73B(4) to the conclusion under s 73B(3), unlocks the proper construction of s 73B(7). It is this entire process of amendment to which s 72AA applies.
The second issue of construction is identifying the action of application of the specified sections and subsections to this object of the "amendment" of the plan of management. Subsection (7) states that the action is that the specified sections and subsections "apply" to the amendment of the plan of management. "Apply" is used in this context in the sense of "to bring to bear; put into practical operation, as a principle, law, rule, etc" (Macquarie Dictionary). The specified sections and subsections are put into practical operation as legal rules regulating the amendment of a plan of management. How they do that will depend on what the specified sections and subsections require.
Section 72AA(1) requires the matters in that subsection to be taken into consideration in undertaking the specified action of "the preparation of a plan of management". Section 73B(7) requires that the consideration of matters required by s 72AA(1) be undertaken with respect to a different action - the amendment of a plan of management. As the amendment of a plan of management is a process, the consideration of the matters in s 72AA(1) needs to be undertaken during and before the end of that process when the Minister exercises the power in s 73B(3) to amend the plan of management.
Section 73A requires the responsible authority to give notice that a specified action has occurred - the preparation of a plan of management - and to invite representations on the exhibited plan, as well as to consult with specified bodies. Section 73B(7) applies these requirements for notice, public exhibition and consultation so that they are undertaken with respect to the amendment of a plan of management. This will occur at the stage during the process of amendment when a draft amendment of the plan of management has been prepared and hence is available to be notified, exhibited and consulted on.
Sections 74 and 75 apply to certain lands in certain circumstances and require the referral of a plan of management to certain bodies for their consideration and representations before it is submitted to the Minister. Section 73B(7) applies these requirements to the amendment of a plan of management. If the circumstances in s 74 or s 75 apply, the requirements of referral of the amendment of the plan of management to the specified bodies for their consideration and representations will occur during the process of amendment, after public exhibition of the amendment and before submitting the amendment to the Minister.
It can be seen that the application of these sections specified in s 73B(7) to the amendment of a plan of management will be at different times throughout the amendment of a plan of management. That corroborates the earlier construction that the object of the action of the application of the specified sections - the amendment of a plan of management - is a process that commences with the Minister's instruction to the responsible authority under s 73B(4) and concludes with the Minister's amendment of the plan of management under s 73B(3).
The third issue of construction is identifying the connection between the action and the object of the action. Section 73B(7) uses the words "to and in respect of". These words are of wide import and allow for the application of the specified sections and subsections to the entire process of amendment of the plan of management. They do not limit the connection to only a part of the process of amendment, such as up to the public exhibition of and consultation on the amendment of the plan of management.
The fourth issue of construction is identifying the way in which the specified sections and subsections apply to the object of the action of application. Section 73B(7) states that the specified sections and subsections apply "in the same way" as they apply to the preparation of a new plan of management. The focus is on the action, not the object of the action - the "way" the specified sections and subsections apply, not the object of the application of those sections and subsections. I have earlier explained when dealing with the second issue of construction, the way in which the specified sections of ss 72AA, 73A, 74 and 75 apply to the preparation of a new plan of management. Section 73B(7) requires that these specified sections apply to the amendment of a plan of management in the same way. I have also explained how this occurs. For s 72AA, for example, this requires the matters in s 72AA(1) to be taken into consideration in the amendment of a plan of management, just as the matters are to be taken into consideration in the preparation of a new plan of management. The object of the consideration is different - the amendment of a plan of management rather than the preparation of a new plan of management - but the requirement to take the matters into consideration operates in the same way.
This construction of s 73B(7) and s 72AA reveals the flaws in NPA's posited construction. NPA contended first that s 73B(7) should be read as if the words "the preparation of" appeared before "an amendment"; secondly, that "the preparation of a new plan of management" refers to a phase up to notice of the preparation of a new plan of management being given under s 73A(1); and thirdly, that the preparation of an amendment of a plan of management similarly refers to a phase up to notice being given of the preparation of the amendment of a plan of management.
NPA submitted that the scheme for both making and amending plans of management in Part 5 of the NPW Act divides the process into distinct phases: preparation, exhibition and consultation, and adoption. For an amendment of a plan of management, the preparation phase begins with the Minister instructing, under s 73B(4), the responsible authority to cause an amendment of a plan of management to be prepared. The responsible authority is obliged, by s 73B(5), to cause the amendment of the plan of management to be prepared as soon as possible. Once an amendment of a plan of management is prepared, the responsible authority must give notice of the preparation of the amendment of the plan of management under s 73A(1). NPA submitted that the giving of this notice under s 73A(1) concludes the preparation phase.
NPA submitted that the words "prepared" and "preparation" in s 73A(1) have the same meaning as the word "preparation" in s 73B(7) and s 72AA(1). Section 73A(1) refers to "when a plan of management is prepared" and the responsible authority giving notice of "the preparation of the plan". Hence, in order for notice to be given of the preparation of the plan, the plan must have been prepared. NPA submitted that, by dint of s 73B(7), this provision applies in the same way to the preparation of an amendment of a plan of management.
NPA submitted that, at this juncture, the phase of preparation of the plan of management or the amendment of the plan of management is complete and the next phase of exhibition and consultation under s 73A commences. During the period of public exhibition, the public may make representations on the exhibited plan of management or amendment of a plan of management. During this period, there may be consultation with the bodies referred to in s 73A. Consultation may also be undertaken under ss 74 and 75 in certain circumstances. Advice may be received from the bodies consulted.
At the conclusion of the exhibition and consultation phase, the Minister may adopt the plan of management under s 73B(1) or amend the plan of management under s 73B(3). The Minister can do either with or without alterations under s 73B(1), which is applied to an amendment of a plan of management by s 73B(7). This is the adoption phase.
NPA's construction is flawed. Section 73B(7) does not includes the words "the preparation of" before "an amendment". As I have earlier explained, that drafting is important. The object of the action of application of the specified sections and subsections is stated to be "an amendment … of a plan of management". By that description, the object of the action is the entire process of amendment from commencement by the Minister's instruction to the responsible authority under s 73B(4) to conclusion by the Minister amending the plan of management under s 73B(3). The description of "an amendment … of a plan of management" is not limited to only the phase in this process of amendment between commencement by the Minister's instruction under s 73B(4) and the public exhibition and consultation under s 73A. That phase is part only of the process of amendment.
Section 73B(7) also does not operate in the way submitted by NPA. I have explained earlier the proper construction of the constituent parts of the words and phrases used in s 73B(7) of the object of the action of application, the action of application, the connection between the action and the object, and the way in which the action of application operates. Construing these words and phrases together and in context, s 73B(7) applies the specified sections and subsections, as may be appropriate, to the process of amendment of a plan of management. Some provisions apply at some phases within that process, other provisions apply at other phases of the process. Importantly for this case, s 72AA applies to the whole process of amendment of a plan of management. Its application is not limited to the phase from commencement of amendment up to public exhibition of and consultation on the amendment. It continues to apply up to the Minister amending the plan of management under s 73B(3).

Application of the proper construction

NPA's challenge to the Minister's decision to amend the POM was on the ground that the Secretary, as the responsible authority, had not taken the matters in s 72AA(1) into consideration in the Secretary's preparation of the amendment of the POM and before the amendment of the POM had been placed on public exhibition under s 73A. This ground depended on NPA's construction of s 73B(7) and s 72AA of the NPW Act being correct. There was evidence, which NPA did not challenge, that both the Secretary and Minister did take into consideration the matters in s 72AA(1) after the public exhibition of the amendment of the POM, between 5 February 2021 and 22 March 2021. On the proper construction of s 73B(7) and s 72AA, this evidence would be sufficient to establish compliance with s 73B(7) and s 72AA.
For this reason, NPA's challenge was to the Secretary's consideration of the matters in s 72AA(1) before the public exhibition of the amendment of the POM. Nevertheless, even on NPA's construction of s 73B(7) and s 72AA that the Secretary needed to consider the matters in s 72AA(1) before public exhibition of the amendment of the POM, there was evidence of consideration of the matters by the Secretary at this time.
The evidence of the Secretary's and Minister's consideration of the matters in s 72AA(1) is largely given by Mr Pettit, a Director, Park Operations Projects for NSW National Parks and Wildlife Service (NPWS). Mr Pettit gave evidence by way of three affidavits sworn 15 June 2023, 19 July 2023 and 1 August 2023 as well as oral evidence at the hearing. Mr Pettit leads the Snowy 2.0 Project Team (Snowy 2.0 Team), which provided the information for the amendment of the POM. He had direct involvement in the amendment of the POM.
Mr Pettitt had been delegated the functions of the Secretary, including the functions in Pt 5 of the NPW Act concerning amendment of a plan of management.
Mr Pettitt stated that: "Through my involvement with the POM, I have become familiar with the matters listed in section 72AA of the National Parks and Wildlife Act 1974. I value them as a useful list of matters to be considered in performing my role with the NPWS". ([5] of 1 August 2023 affidavit)
Mr Pettitt noted that he had considered the environmental impact statement (EIS) that had been prepared for the Snowy 2.0 Project by EMM dated September 2019. The Minister for Planning and Public Spaces approved Critical State Significant Infrastructure Application No 9687 for works described as Snowy 2.0 Main Works on 20 May 2020 (Main Works Approval). The EIS was for these works. Mr Pettitt stated that members of his Snowy 2.0 Team read the EIS. He read the summary and was briefed by his team on the critical parts of the EIS. He said he "formed the view that the environmental impacts of the Main Works Approval overlapped with the considerations under section 72AA of the NPW Act".
Mr Pettitt stated that: "From March 2020, through to February 2021, NPWS commenced the scoping stage for the POM Amendment. This included all uses, activities and works required for Snowy 2.0 which were either approved or under assessment in accordance with the EP&A Act within KNP and permitted within KNP by way of leases, licences and easements in accordance with the NPW Act." ([20] of the 15 June 2023 affidavit)
Mr Pettitt expanded on this point: "I recall discussing with my superiors and the Snowy 2.0 Team whether the works, uses and activities required as part of Snowy 2.0 were consistent with the objectives of the NPW Act, the management principles for national parks in NSW, and the POM. The substance of the considerations contained in s 72AA of the NPW Act formed the basis of these discussions and I treated the considerations as a mental check list to which I could have reference." ([12] of 1 August 2023 affidavit)
Mr Pettitt stated that he "was fully aware that Snowy 2.0 required approvals including planning approvals from different government entities" ([13] of 1 August 2023 affidavit). He noted that "NPWS was consulted in relation to all facets of the inter-agency approval process for Snowy 2.0" ([23] of the 15 June 2023 affidavit). He said he: "was directly involved in the process of consultation that took place in relation to all facets of the approval process for Snowy 2.0. As outlined above, I was always cognisant of the considerations in section 72AA of the NPW Act throughout the preparation, exhibition, consultation, and adoption phases of the POM Amendment process." ([14] of 1 August 2023 affidavit).
Mr Pettit considered the particular issue raised by the amendment of section 12.6 of the POM to allow overhead transmission lines for the Snowy 2.0 Project. He stated: "NPWS also carefully considered how the POM Amendment process should be facilitated and was concerned about the potential precedent that may be set by allowing works such as overhead transmission lines to be constructed within the KNP. NPWS wanted to ensure that the POM Amendment maintained the existing prohibition on the construction of new overhead powerlines for all other future development except Snowy 2.0" ([25] of 15 June 2023 affidavit).
Mr Pettit was involved in the process of the amendment of the POM. He said he: "was directly involved in the provision of information to the team that drafted the POM Amendment. In providing the information to that team, I had reference to the substance of the matters listed in section 72AA of the NPW Act. I carried out that consideration prior to the exhibition of the POM Amendment and in the course of assisting the team who were tasked with drafting the POM Amendment. I also had the opportunity to comment on and approve the draft POM amendment prior to exhibition" ([16] of 1 August 2023 affidavit).
Mr Pettitt noted that during the period of public exhibition of the amendment of the POM between 5 February 2021 and 22 March 2021, 234 submissions were received. He stated that: "On review of these submissions, the main concerns raised were in relation to overhead powerlines and consideration of the matters in section 72AA of the NPW Act" ([30] of 15 June 2023 affidavit). He continued: "Many of the concerns raised in the submission process were environmental concerns. The environmental impacts of Snowy 2.0 were considered during the assessment process under the EP&A Act which informed the consideration of the matters listed in section 72AA of the NPW Act to the extent they were relevant to the POM Amendment process." ([32] of 13 June 2023 affidavit).
Mr Pettitt stated that "following review of the submissions, the draft amendment to the POM was revised in response to the concerns raised by the submissions" ( [31] of the 15 June 2023 affidavit).
Mr Pettitt explained the consultation required by s 73A of the NPW Act with the Southern Ranges Regional Advisory Committee and the National Parks Advisory Council. He stated that "the revised amendment to the POM, submissions, submissions report, and other supplementary documents" were provided to these bodies. One of the documents included in the supplementary documents was "a separate document which outlined the matters listed in section 72AA of the NPW Act and how they had been considered throughout the amendment process to date" ([33] of 15 June 2023 affidavit).
Mr Pettit stated that the two bodies consulted, in their written responses, "opined that the overhead transmission lines the subject of the amendment to the POM should be restricted to connection from the power station to the regional grid connection proposed at Maragle on Snowy 2.0 sites" ([36] of 15 June 2023 affidavit).
Mr Pettitt recorded that after receiving the advice from the bodies consulted, "the amendment to the POM was finalised" ([37] of 15 June 2023 affidavit). He noted that the amendment to the POM was further revised, although not the impugned section 12.6 of the POM, but the definition of the Snowy 2.0 Project ([38] of 15 June 2023 affidavit).
Mr Pettitt explained the preparation of the "briefing note package" to the Minister which provided the recommendation of the Secretary that the POM be amended under s 73B(3). Mr Pettitt stated that the briefing note package was prepared and approved by him, Mr Clarke, the Executive Director Park Operations Inland NPWS, Ms Stephens, Acting Deputy Secretary NPWS, and Mr Fleming, Coordinator-General Environment and Heritage Group, prior to submission to the Minister for review and determination ([39] of 15 June 2023 affidavit). The briefing note package had 12 attachments, including the proposed amendment to the POM, the advice from the two bodies consulted, a document titled "Section 72AA Considerations" and a report on representations made during public exhibition ([40] of 15 June 2023 affidavit). Mr Pettitt stated that the document titled "Section 72AA Considerations" was prepared by NPWS Planning and Assessment team based on information provided by him and the Snowy 2.0 Team ([17] of 1 August 2023 affidavit).
Mr Pettitt noted that, on 1 September 2022, the Minister adopted the POM Amendment by executing the briefing note. The Minister signed and dated the briefing note and ticked the six "yes" boxes in the Recommendation.
The briefing note stated its "purpose" to be: "To seek adoption of an amendment to the Kosciuszko National Park (KNP) Plan of Management (PoM) to ensure that authorised Snowy 2.0 operations are undertaken in KNP in accordance with the National Parks and Wildlife Act 1974 (NPW Act)."
The "analysis" in the briefing note was: "The KNP PoM does not currently provide for a range of Snowy 2.0 operations that are being undertaken in KNP. The NPW Act generally prohibits operations on park where they are not in accordance with the relevant PoM. The Snowy Hydro Corporatisation Act 1997 switches off this prohibition in respect of Snowy 2.0 operations in KNP, but only until February 2023. This proposed amendment is necessary to enable Snowy 2.0 operations to continue, consistent with the NPW Act beyond February 2023."
The briefing note made six recommendations, two of which were: "• Consider the factors set out in s.72AA of the NPW Act and discussion of those factors in relation to the proposed amendment (Tab 5) together with the report on submissions made following public exhibition of the draft amendment (Tab 6). • Decide whether to adopt the amendment to the Kosciuszko National Park Plan of Management (Tab 1)."
Tab 5 to the briefing note was the document titled "Consideration of matters under Section 72AA of the National Parks and Wildlife Act 1974". Table 1 in that document had two columns, the first titled "Matters that must be considered under s 72AA" and the second titled "How have these matters been considered?" The first column reproduced the text of the matters in s 72AA(1). The second column analysed how each matter had been considered in the amendment to the POM.
On the basis of this evidence of consideration of the matters in s 72AA(1), both before and after public exhibition of the amendment to the POM, NPA has not established that there was a failure to take into consideration the matters in s 72AA(1) in the amendment of the POM and hence that there was a breach of s 73B(7) and s 72AA.
That is clear with the consideration of the matters in s 72AA(1) after public exhibition by both the Secretary (by the delegate Mr Pettitt, amongst others) and the Minister. The briefing note and attached table of consideration of the matters in s 72AA(1) are the clearest examples. On the proper construction of s 73B(7) and s 72AA, consideration of the matters in s 72AA(1) at this time satisfied the requirement that the matters be taken into consideration in the amendment of the POM. NPA did not challenge the Secretary's and the Minister's consideration of the matters at this time.
But the evidence also established consideration of the matters in s 72AA(1) at the time before the public exhibition of the amendment of the POM. Although documents were not provided in response to requests by NPA under the GIPA Act evidencing express consideration of the matters in s 72AA(1) before public exhibition of the amendment of the POM, Mr Pettitt's evidence given at the hearing established that he in particular did consider the matters in s 72AA(1) in the preparation of the amendment of the POM before the public exhibition of the amendment. I have set out that evidence above. Mr Pettitt was not cross-examined on this evidence and NPA did not adduce any evidence to the contrary of Mr Pettit's evidence.
In these circumstances, NPA has not established that the Secretary did not take into consideration the matters in s 72AA(1) before the amendment of the POM was placed on public exhibition. Hence, even on NPA's construction of s 73B(7) and s 72AA that the matters in s 72AA(1) needed to be taken into consideration by the Secretary before public exhibition of the amendment of the POM, NPA has not established that the Secretary did not do so.

Conclusion and orders

NPA has not established that the Minister's decision, on 1 September 2022, to amend the POM was vitiated by a failure to comply with s 73B(7) and s 72AA of the NPW Act. The proceedings should be dismissed.
Ordinarily in judicial review proceedings, costs follow the event. There is, however, an exception for proceedings that are brought in the public interest. Rule 4.2(1) of the Court Rules provides that the Court may decide not to make an order for the payment of costs if it is satisfied that the proceedings have been brought in the public interest. In the circumstances of this case, that rule would appear to be engaged. At the hearing, however, the parties said they were not in a position to argue whether a costs order should or should not be made. They both sought for the Court to reserve the question of costs.
I am prepared to do so, but on this basis. Although I have not yet heard argument, I am inclined to the view that in the circumstances off this case, it might be appropriate to exercise the discretion under r 4.2(1) not to make an order for costs. I propose that no order for costs should be made unless the Minister makes an application for an order that NPA pay the Minister's costs of the proceedings. Any such application should be made within a month. If an application is made, a timetable will be set for providing evidence and submissions and fixing a hearing if necessary.
The Court orders: 1. Time for commencing the proceedings is extended to 21 February 2023. 2. The proceedings are dismissed. 3. No order as to costs will be made unless the respondent, by 25 January 2024, applies for an order that the applicant pay the respondent's costs of the proceedings. 4. In the event that the respondent applies for an order for costs under Order (3): 1. the respondent is to file and serve any evidence on which it seeks to rely and written submissions in support of its application for costs by 25 January 2024; 2. the applicant is to file and serve any evidence on which it seeks to rely and written submissions in support of its application that there be no order as to costs by 8 February 2024; and 3. if any party seeks an oral hearing on the question of costs, rather than a determination on the papers, the parties are to apply to the Registrar to fix a day for the hearing of the question of costs.

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: 22 December 2023

National Parks and Wildlife Act 1974(NSW)ss 72AA, 73A, 73B, 74, 75, Pt

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