Snowy Mountains Brumby Sustainability & Management Group Incorporated v State of New South Wales and Anor

Ground 1 - Failure to comply with s 5.5(1) of the EP&A Act

Matters for determination

1. The requirements of s 5.5(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) are: 5.5 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
2. In order to determine whether, in the circumstances of this case, there has been a breach of the duty imposed by s 5.5(1) the following matters must be determined: 1. An identification of the action to which the proceedings relate; 2. A determination as to whether such action comprises an "activity" within the meaning ascribed to that term in s 5.1, including whether it falls within the exceptions to that defined term; 3. A determination as to whether the carrying out of that activity requires consideration by the relevant determining authority; and 4. If the answers to questions (2) and (3) are "yes", whether the determining authority has examined and taken into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

Identification of action to which the proceedings relate

1. The parties acknowledge that the nature of the Proposed Action to be undertaken by the Respondents comprises those actions outlined in the Stakeholder Update.
2. The Stakeholder Update identifies that the population of wild horses in the National Park is to be reduced under the Horse PoM. The Targeted Areas of the National Park have been identified as areas of priority for removal as the number of wild horses in these areas have the potential to exacerbate the impacts from the bushfire or impede the restoration of the impacted areas.
3. The physical activities that are proposed to give effect to the intention to reduce wild horse numbers in the Targeted Areas are: 1. The restoration and maintenance of existing passive trap yards; 2. The construction of new passive trap yards; 3. The carrying out of wild horse aerial and ground mustering; 4. The containment of wild horses that have been captured by luring or mustering and the storage of those wild horses for a period; 5. The transportation of the captured wild horses by road transport from the collection sites via roads within the National Park; 6. The consequential permanent removal of the captured wild horses from the National Park; 7. The euthanising (at site or at the knackery) or rehoming of the removed wild horses.

Are the identified actions an "activity" within the meaning of s 5.1 of the EP&A Act?

1. The obligation conferred in s 5.5(1) is only engaged where there is a consideration relating to an activity. Activity is defined in s 5.1(1) in the following terms: (1) In this Division - activity means - (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 3.14 that is prescribed by the regulations for the purposes of this definition, but does not include - (g) any act, matter or thing for which development consent under Part 4 is required or has been obtained, or (h) any act matter or thing that is prohibited under an environmental planning instrument, or (i) exempt development, or (j) development carried out in compliance with a development control order, or (k) any development of a class or description that is prescribed by the regulations for the purposes of this definition.
2. The Applicant contends that in order to determine whether the Proposed Action is an Activity it is necessary to undertake a characterisation of the actions in a traditional planning manner by determining, objectively, the end (or purpose) to which the Activity is serving by examining the activities, processes or transactions proposed: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 311. Thereafter, the characterised purpose is to be considered in the context of the definition of Activity in s 5.1.
3. The Applicant contends that with such characterisation undertaken the Proposed Action is an Activity as defined by s 5.1 as it comprises: 1. The use of land by: the luring or mustering of the wild horses; the trapping, storage and transport of the wild horses; 2. The erection of a building by: the construction of new trap yards and the maintenance of existing trap yards; and 3. The carrying out of a work by: the laying of gravel for the trap yards and access to the yards; the rehabilitation and drainage works envisioned as part of the restoration and re-use of the trap yards.
4. The Respondents did not contend that the approach suggested by the Applicant to characterisation was inappropriate. However, the Respondents contended that upon a proper characterisation of the Proposed Action such actions would not comprise an Activity as they did not relevantly comprise the use of land or the erection of a building.
5. The characterisation of proposed conduct for environmental assessment was considered in the now often cited decision of Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27]-[28] and [34]-[36]: 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; 10 LGRA 147 at 150 and Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 at 121; 80 LGERA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe at 534; 150. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500; 4 LGRA 69 at 74. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508; 81. … 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe at 534, 535; 150 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; (1978) 38 LGRA 306 at 308. 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310.
6. The approach proposed by the Applicant to the characterisation of the Proposed Action is consistent with the determination in Chamwell and that approach, in so far as it outlines the principles relating to characterisation, is to be adopted. Whilst the decision in Chamwell related to a characterisation for the purposes of determining whether development was prohibited for the purposes of a Part 4 assessment under the EP&A Act there is no textual or contextual difference in the legislative provisions to suggest a different approach should be taken to Part 5 considerations. The definition of development in s 1.3 contains provisions consistent with those identified in the definition of Activity in s 5.1 (for example the use of land). The objects of the EP&A Act that relate to the facilitation of the proper assessment and management of the environment as provided in s 1.3 of the EP&A Act apply equally to Part 4 and Part 5 environmental assessment, notwithstanding that the triggering of the requirement for that assessment is different.
7. The Applicant, however, in applying the relevant principles of characterisation does so at a level of detail that relates to the particular elements of the Proposed Action rather than the end to which those actions serve. As outlined in Chamwell at [34] the nature of the use is to be distinguished from its purpose.
8. In considering the purpose of the Proposed Action (or the end to which the actions are directed) at a level of abstraction that is sufficient to cover the whole of the actions, what is proposed by the Respondents are actions for the capture and removal of wild horses from within the National Park and the associated works required to facilitate that action.
9. The question as to whether this purpose is an Activity within the meaning ascribed to that term by s 5.1 then needs to be considered.
10. The Proposed Action comprises elements that, as outlined by the Applicant, can fall within a number of the categories of inclusion (as opposed to the exclusionary provisions) in the definition. However, the Proposed Action as characterised does not require the breaking into the composite elements for it to fall within the meaning of Activity. What is proposed is the use of land for that purpose, and any physical structures, whilst they may also be the erection of a building or a work, are subservient to that purpose; they are for the purpose of the capture and removal of wild horses.
11. The phrase "use of land" is repeatedly deployed in the language of the EP&A Act but is not defined by the Act (see by way of example: the definition of development in s 1.4; the meaning of development in 1.5 (and through that definition the application to the use of land of the Part 4 development consent provisions); and the existing use provisions in Division 4.11).
12. The parties took the Court to competing authorities relating to the determination of whether some action was a use of land. What those authorities indicate is that, in large measure, whether something is a use of land will turn on questions of fact and degree having regard to the particular facts in each particular case. The authorities to which the Court was taken were: 1. In Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 at [32]-[33] Talbot J held that the granting of a commercial fishing license was an Activity as it authorised the use of land (namely the sea): 32 The commercial fishing licence specifically identifies the fisheries within which the second respondent may operate. The authorised use is particular and real. It is not transitory whilever the enterprise of netting a catch is taking place. There is nothing artificial about the concept of a fisher, or a group of fishers, using the seas for the purpose of farming the produce as a commercial enterprise. A rural property comprising an area of hundreds of square kilometres used for grazing is nonetheless a use of land, although the carrying capacity for each hectare may bear no relationship to the intensity of use of riparian land under cultivation. So it is with a licence to use a wide ranging area of the sea that has the significant economic aim of harvesting marine creatures whilst utilising equipment specifically designated for the purpose. 33 In other words, the sea is employed by Mr Whatson for a profitable end to the effect that he must be regarded as using the sea as others might take the natural products or fruits of land. 1. In Rundle v Tweed Shire Council (1989) 68 LGRA 308 at 323 Bignold J held that the application of a pesticide to a species of noxious plant was not the use of land as: In my opinion these submissions must be rejected. To describe the herbicidal spraying of a noxious plant infestation on land as "use of land" is in my opinion far too artificial to be either a meaningful or apposite description. Moreover it does not accord with the established meaning of the concept "land use" in a town planning or environmental planning context. 1. The Court also raised with parties the notion of subdivision simpliciter not being a use of land, as was considered in: Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; Wehbe v Pittwater Council (2007) 156 LGERA 446; and determined to the contrary in Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306.
13. To the extent that some assistance can be drawn from these authorities, there appears to be a broadly consistent approach that the action must concern the achievement of a purpose that has as its aim to derive some benefit from the land to be considered a "use of land". Whilst not every use requires a physical action to achieve such purpose, where a physical action on the land is required to achieve the purpose it is easier to find that the purpose is the use of land than where there is no such physical action.
14. In this case, it is appropriate that the Proposed Action be characterised as an Activity relating to the use of land for the reasons that: 1. The activities being undertaken relate to the use of the land as a National Park and are being undertaken to achieve the object of preservation and protection of the environmental and cultural values of that National Park; 2. A positive action on the land is required to achieve the end proposed. That is, whilst the regeneration of the environmental damage may be a passive "use", an active removal of the wild horses is required to permit that state of affairs to come about; 3. The Proposed Action has the potential to have both positive and negative consequences for the land to which it relates. It is not, for example, akin to subdivision simpliciter that effects no change to the land, or what was found in respect of the removal of a noxious weed by the application of herbicide. To that extent, such a factor is consistent with the scope of the objects of the EP&A Act as set out in ss 1.3(a)-(b), (e)-(f); and 4. The wild horses exist on the land in their present locations and population numbers. The exclusion and removal of the wild horses requires the undertaking of specific actions by way of mustering or luring and trapping of the wild horses. Such specific actions require the production of traps and lures, the physical endeavour of the muster and capture and the transportation and permanent removal of the captured horses.
15. To the extent that the Respondents submitted that the Proposed Action contained elements of a "temporary" nature and as such should not be considered as falling within the definition of an Activity, this assessment is focused upon the nature of the use rather than its purpose. The submission of the Respondents that the Activity of the exclusion of wild horses in the National Park is an ongoing process is accepted (for the reasons outlined below). However, the fact that as part of that process the elements utilised to achieve that end are moved, relocated or otherwise transient does not operate to render the use comprising the totality of the characterised actions as temporary.
16. Additionally, there is no warrant in the language of Part 5 and specifically the definition in s 5.1 that would suggest that the fact that a use is temporary would exclude it from the operation of the duty conferred in s 5.5 or the definition to which that duty relates in s 5.1.
17. For those reasons, the Applicant's submission that the Proposed Action is an Activity (within the inclusions of the definition of Activity) in that it is the use of land is accepted.
18. The Respondents contend that the Proposed Action is specifically excluded by the exclusions to the definition of Activity in that it is exempt development as provided for in s 5.1(1)(i).
19. The Respondents submitted that upon a proper construction of the EP&A Act the Proposed Action was exempt development as it was development that was able to be carried out without development consent pursuant to the provisions of cl 65 of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP). The argument was founded upon a construction of the definition of exempt development and the provisions of s 1.6 of the EP&A Act.
20. The definitions contained in s 1.4 of the EP&A Act provide the following with respect to exempt development: exempt development - see section 1.6
21. Section 1.6 then provides: 1.6 Exempt development (1) The carrying out of exempt development does not require - (a) development consent under Part 4, or (b) environmental impact assessment under Division 5.1, or (c) State significant infrastructure approval under Division 5.2, or (d) a certificate under Part 6 (Building and subdivision certification). (2) Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact.
22. The Respondent contends that s 1.6 operates to identify two routes for rendering development "exempt development". The first is by being development described in s 1.6(1) and the second is by being declared exempt development in an environmental planning instrument described in 1.6(2). These two routes are said to operate independently of each other, in part because the reference in the definition at s 1.4 is a reference to s 1.6 as a whole and not limited to only part of that section.
23. The Respondent contends that as the Proposed Action is development that does not require consent under Part 4 by operation of cl 65 of the ISEPP, which, relevantly provides: 65 Development permitted without consent (1) Development for any purpose may be carried out without consent - (a) on land reserved under the National Parks and Wildlife Act 1974, or acquired under Part 11 of that Act, if the development is for a use authorised under that Act, or … it is exempt development by operation of s 1.6(1)(a) and therefore not an Activity as it is excluded from that definition by s 5.1(1)(i).
24. The Applicant contends that on a proper reading of the text of s 1.6 the definition of exempt development is only that referred to in s 1.6(2). The ISEPP does make provision for the declaration of exempt development in cl 66 but the Proposed Action does not fall within the declared types of development.
25. Further, the Applicant notes that as the National Park is zoned E1 - National Parks and Nature Reserves under the Snowy River Local Environmental Plan 2013 (SRLEP) and in that zone uses authorised under the NP&W Act are permitted without consent and any other development is prohibited development, there is no need to rely upon the ISEPP to demonstrate that development consent under Part 4 is not required.
26. The construction adopted by the Applicant must be correct; the Proposed Action is not exempt development. The definitions in the EP&A Act are qualified in s 1.4(1) as operating except in so far as the context or subject matter otherwise indicates or requires. Section 1.6(1) by its terms sets out the effect (or consequence) of development being exempt development. The terms do not lend themselves to a construction that indicates that it is identifying the means of being characterised as exempt. The terms of s 1.6(2), however, do describe what exempt development is, and is therefore, by its terms, defining the meaning of that term. This distinction in the text is sufficient to overcome the reference in the definitions to s 1.6 as a whole, as the context and subject matter of that provision itself indicate that the provisions of s 1.6(1) are not definitional but operational.
27. Therefore, as the Proposed Action cannot be properly characterised as exempt development the Proposed Action is not, for that reason, excluded from being an Activity within the definition of that term in s 5.1.

Has the determining authority in its consideration of the Proposed Action, which comprises an Activity examined and taken into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that Activity?

1. The duty conferred by s 5.5 is one that must be read as incorporating a limitation of reasonableness on the scope of the considerations. It has been held that the section should be read so as to incorporate the word "reasonably" before the word "possible": Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 366.
2. Further, the duty arises at the time when a determining authority is giving consideration to an Activity. It is at that point in time that the determining authority has the duty to examine and take into account to the fullest extent reasonably possible all matters affecting or likely to affect the environment by reason of that Activity.
3. The crux of the dispute between the parties is whether the Activity as identified above requires an assessment pursuant to s 5.5(1) or whether that assessment has already been sufficiently undertaken at the time of the adoption of the Horse PoM such that the duty has been discharged with respect to the Activity.
4. The Applicant's fundamental proposition with respect to Ground 1 was outlined in [16] of its submissions as the following: The Applicant contends that the [Proposed Action] is a newly proposed set of actions, with specific objectives, that are intended to be responsive to current events, particularly the bushfire season over December 2019 - February 2020.
5. The Applicant contends that the Activity of the proposed removal (by exclusion and reduction of numbers of wild horses) in the Targeted Areas of the National Park is an Activity that has not been examined so as to take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that Activity as: 1. The Proposed Action is a "new" proposal and not part of the day to day management of wild horses as envisaged by the Horse PoM and therefore cannot be taken to have been relevantly considered for the purposes of s 5.5(1) by the adoption of the Horse PoM. Importantly, this is illustrated by the fact that not all of the Targeted Areas were nominated in terms in the Horse PoM; 2. There is increased intensity making the Proposed Action distinct from previous actions. The increase in the intensity represented by the Proposed Action is illustrated by the number of wild horses involved in the Proposed Action; the number and location of new trap yards; and the number of truck movements through the National Park to facilitate the removal of the wild horses; and 3. The purpose and scope of the Proposed Action relating to bushfire recovery is not of the same object of horse management as formulated in the Horse PoM.
6. As a consequence of this being an Activity not previously considered, the duty under s 5.5 must be discharged for the Proposed Action. The Respondent has not discharged that duty and, in particular, has not undertaken a review of factors in accordance with cl 228 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).
7. The Applicant also contended in its submission in reply that the Horse PoM could not be a consideration to the fullest extent as it was prepared before the Kosciuszko Wild Horse Heritage Act 2018 and could not have taken into account the cultural values of the keeping of the wild horses in the National Park.
8. The Respondents contend that the Activity is one that falls within the Horse PoM and that as such the necessary consideration was undertaken at the time the determining authority approved the Horse PoM and its constituent actions. In particular, the Respondents submitted that: 1. The Horse PoM was prepared after a decision was taken through the National Park PoM to exclude wild horses: National Park PoM cl 11.4.1(9)-(10) (p 193); 2. The requirement of the National Park PoM to "[e]valuate the environmental acceptability of all introduced animal control methods before they are adopted" was fulfilled by the preparation, consideration and adoption of the Horse PoM: National Park PoM cl 11.4.3(3) (p 193); 3. The Horse PoM was expressed to be in furtherance of the commitment to exclude wild horses and to prepare a plan to achieve that goal: Horse PoM (p i); 4. The Horse PoM was directed to an ongoing management regime where both the environment in which the plan related, and the population and distribution of wild horses would change over time. The Horse PoM was not limited to a specific time, environmental state or wild horse numbers; 5. The Horse PoM identified: 1. The impacts that wild horses had upon the environment in the National Park; 2. The point in time population and distribution of wild horses in the National Park as at the date of adoption. It, however, made provision for the movement of horses through the National Park and changes in population numbers; 3. The locations in the National Park to which the aim of wild horse exclusion related. These locations were not merely geographical but also identified the trigger for action such as the movement of horses into previously unoccupied areas of the National Park and safety concerns/risk; 4. The appropriate means by which wild horses would be captured; 5. Analysed the environmental impacts of the capture measures (such as passive lure) and identified the appropriate locations for such capture measures by reference to the capacity to manage to an appropriate level the environmental consequence of such measures, rather than geographic location; 6. The means by which the environmental consequences of the Proposed Action would be monitored; and 7. The means of disposal of the captured wild horses.
9. The Respondents therefore submitted that the Proposed Action in so far as it comprised the Activity in question had examined and taken into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that Activity at the time the consideration of the Activity was undertaken, namely at the time of adoption of the Horse PoM and that no further or other consideration was required at this stage to discharge the duty conferred by s 5.5(1). That is, the Proposed Action, being the program of the capture and removal of wild horses, had already been considered at the time of adoption of the National Park PoM and Horse PoM. There was no "new" or other Activity that was being considered in the Proposed Action. Therefore, there was no need to undertake the review provided for in cl 228 of the Regulation.
10. It is no part of the Applicant's case in these proceedings that the duty conferred by s 5.5(1) was not sufficiently discharged at the time of adoption of the National Park PoM and/or the Horse PoM so as to impugn the carrying out of the Activity authorised by those plans. On that basis, the starting point for the purposes of these proceedings is that the relevant duties were discharged at that time to allow the undertaking of the actions in the Horse PoM.
11. Therefore, in order for the Applicant to succeed in the present claim, it is necessary for the Applicant to distinguish the Proposed Action from an action envisaged by the Horse PoM. It is a necessary logical conclusion that if the Proposed Action is an action authorised by the Horse PoM, the duty conferred by s 5.5(1) has been discharged (as that decision is not being impugned in these proceedings). However, if the Proposed Action does not fall within the actions authorised by the Horse PoM then it would be necessary to determine whether the duty imposed by s 5.5(1) has been discharged independent of the Horse PoM.
12. For the reasons that follow, the Respondent's submissions that the Proposed Action is authorised by the Horse PoM are accepted and, therefore, it is not required by s 5.5(1) to be further considered prior to the carrying out of the Activity.
13. A proper construction of the Horse PoM it does not limit the exclusion of wild horses only from the nominated management units as they existed at the date of adoption of the Horse PoM. The parties agreed that of the nominated geographical locations in section 7 of the Horse PoM, only the area referred to as the Cooleman Plain Management Unit was the subject of the Proposed Action. The balance of the areas to be addressed in the Proposed Action were (if not entirely, substantially) not within a nominated management unit of the National Park. Whilst the Horse PoM did utilise management units as a means of identifying the action areas within the National Park they were not the sole areas identified for the actions proposed. The Horse PoM provided in terms: 7. Exclusion Zones and Feeder Areas The 2006 Plan of Management for Kosciuszko National Park calls for horses to be excluded from the following areas: • Main Range Management Unit • Yarrangobilly Management Unit • Cooleman Plain Management Unit • Safety risk areas such as highways • Areas of the park where horses have not been or have only recently been recorded • Areas of the park adjoining other Australian Alps national parks and reserves • Feeder areas for all these parts of the park. Feeder Areas A feeder area is an area adjacent to a horse exclusion zone, from where horses are known to be moving into that exclusion zone. As the size of such a feeder area is dependant on the vegetation, topography, and water resources of an area, and on the size and composition of each horse mob. Feeder areas change over time as a result of changes in the weather, environment and density of horse populations. It is not possible to chart these areas on a map. Staff and operators will monitor horse populations in exclusion zones and areas adjacent to exclusion zones and if populations continue to grow will undertake control programs in these feeder areas.
14. The Horse PoM expressly provides that areas other than the nominated management units are to be the areas of the National Park to which the Horse PoM relates. This is further reinforced by the statement that forms part of section 7 of the Horse PoM to the following effect: Control in the Rest of the Park The control program in this plan aims only to exclude horses from the areas defined above. The decision may be made to reduce horse numbers in other areas of the park if they are judged to be causing unacceptable impacts to the environment or the cultural heritage of the park, or they pose a risk [to] public safety. Control may also be undertaken to halt the spread of diseases such as Equine Influenza.
15. On a proper construction of the Horse PoM, the Activity is not a "new" Activity by virtue of its geographic location as the Proposed Action is within areas authorised by the Horse PoM. The uncontested evidence is that the reduction of numbers in the Cooleman Plain Management Unit was part of the consideration of the Horse PoM; the exclusion in the area described as Nungar Plain is an area where wild horses have only recently been recorded; and in the Kiandra Plain area there are threats to the safety of road users by the presence of wild horses. Each of these areas are therefore within the areas to which the Horse PoM is expressed to apply.
16. The application of the Horse PoM is not limited by or dependent upon the number of horses to which the activities will be targeted. To the extent that the Applicant contends that the number of wild horses to which the Proposed Action relates is larger (even to a significant degree) than past years is not a relevant measure of application of that plan. The Horse PoM did not use as a benchmark for assessment purposes or for defining actions the number of wild horses that would have to be removed to achieve the end proposed. The number of horses is recognised in the Horse PoM to vary due to environmental conditions (including availability of feed and fertility). The benchmarks are independent of mere horse numbers: they relate to safety, previously known distributions, and current distributions. The effect on numbers will vary from year to year depending upon the horse population and movement. The manner in which the wild horses are excluded does not vary, nor do the nominated areas in which control measures are permitted to be undertaken. Therefore, even if it is accepted that the Proposed Action has the potential to affect a larger number of wild horses than in past years such fact would not operate to take it outside of the provisions of the Horse PoM.
17. The Applicant contended that the increase in the number of of wild horses affected should be considered as an intensification of the "use" such that like the circumstances in Oshlack v Rous Water (No 2) (2012) 189 LGERA 243 (which was confirmed on appeal in Oshlack v Rous Water (2013) 194 LGERA 39), the environmental consequences would need to be reconsidered as it would be beyond the scope of the initial consideration. The facts in Rous Water were quite different than the facts in this case. In Rous Water there was an initial authorisation to dose the water with a nominated amount of fluorine. The dose was then proposed to be increased above the previously nominated amount. In this case, as has been observed above, there is no such limitation on horse numbers in the Horse PoM. To the contrary, the Horse PoM anticipates fluctuations in wild horse populations and the movement of those populations. The number affected by an application of the Horse PoM would therefore fluctuate. The exclusion of horses was to be determined based upon factors unrelated to the wild horse population numbers. There is no analogy to be usefully drawn with Rous Water as on the facts and evidence in this matter the activities envisaged by the Horse PoM was not limited by wild horse numbers.
18. For the same reason, the contention by the Applicant that as the wild horse numbers targeted are larger than in the past there will consequently be an increase in truck movements to remove captured horses, and an increase in trap yard numbers to capture wild horse, should not be accepted. The Horse PoM does not have an operational limitation by reference to truck movements or trap yard numbers. A fluctuation in numbers each year is anticipated in the Horse PoM and does not use these benchmarks to limit its operation.
19. The Applicant contends that the object and purpose of the Proposed Action is for the recovery from bushfire as part of the statewide emergency recovery plan responding to consequences to the environment of the bushfire emergency of 2019-2020. This, it is said, is for a purpose outside the ambit of the Horse PoM and therefore cannot be carried out in accordance with it.
20. The stated objectives of the Horse PoM are: 2. Objectives The objectives of the Horse Management Plan for Kosciuszko National Park are: • to exclude horses from • the Main Range Management Unit; • the Yarrangobilly Management Unit; • the Cooleman Plain Management Unit; • safety risk areas such as highways; • areas of the park where horses have not been or have only recently been recorded (e.g. Jagungal); • areas of the park adjoining other Australian Alps national parks and reserves; and • feeder areas for all of these parts of the park. (see Figure 2) • to reduce horse numbers in other specific areas to reduce the risk they pose. These areas would be where horses have an impact on public safety, the environment or on the cultural heritage of the Park • to make sure that all horses are treated humanely throughout the removal process and their removal complies with current Codes of Practice
21. The Horse PoM was prepared to further the objects (outlined above) of the National Park PoM. Neither the National Park PoM nor the Horse PoM identify either expressly or by implication a limitation on the circumstances that will give rise to the meeting of those objectives. That is, the objective is to remove wild horses in certain nominated areas in certain nominated manners. The achievement of that objective is not dependent on the surrounding environmental circumstances. That is not to say that that the surrounding environmental circumstances will not operate to influence the extent to which action is taken in any given year, or the factors that may influence the manner in which the action is undertaken. However, the triggering event, in this case fire, is not a factor that defines the limits of the application of wild horse exclusion and removal pursuant to the Horse PoM. The judgment to remove wild horses was made through the process of the adoption of the National Park PoM and the Horse PoM. The Proposed Action is not remaking that decision; it is the continued implementation of it.
22. To the extent that legislative circumstances have changed with the making of the Kosciuszko Wild Horse Heritage Act 2018, that change does not impugn the fundamental decision that was made with the adoption of the National Park PoM or Horse PoM to remove wild horses from the National Park. That decision was made prior to the making of the Act and the provisions of that Act do not operate to invalidate, suspend or alter the operation of that past decision making. The Act operates prospectively to require a new plan of management to be prepared and adopted. The existence of this Act does not limit the past decision to remove wild horses from the National Park. As a consequence, the implementation of that decision by the process of capture and removal is not affected such that the Act operates to require modification of the Horse PoM actions.
23. For the reasons outlined, Ground 1 is dismissed as the Proposed Action is an Activity anticipated by the Horse PoM. The Proposed Action is not a new Activity such that it cannot be undertaken in accordance with, and in reliance upon, the provisions of the Horse PoM.

Ground 2 - Failure to comply with s 81 of the National Parks and Wildlife Act 1974

1. Section 81 of the NP&W Act, as it relates to lands such as the National Park, provides: 81 Operations under plan of management (1) Where the Minister has adopted a plan of management for a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area or wildlife refuge, it shall, subject to subsections (5) and (6), be carried out and given effect to by the Chief Executive. … (4) Despite anything in this or any other Act or in any instrument made under this or any other Act, if the Minister has adopted a plan of management under this Part, no operations shall be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with that plan. However, this subsection does not prevail over section 185A.
2. The relevant Minister has adopted two plans of management relevant to the subject matter of these proceedings: the National Park PoM and Horse PoM.
3. The Respondent contends that the Proposed Action is being carried out in accordance with the Horse PoM. For the reasons outlined in connection with Ground 1, the Horse PoM is sufficiently framed to allow the Proposed Action.
4. The means of capture, the construction of trap yards, the monitoring and assessment of the use of the yards, and the removal and disposal of captured horses are proposed to be consistent with the requirements of the Horse PoM.
5. There being no evidence that having regard to the finding made as to the scope of the Horse PoM that the Proposed Action is inconsistent with the requirements of that plan, Ground 2 should be dismissed.

Costs

1. In the event that it was unsuccessful in the proceedings, the Applicant submitted that the Court would not make an order for the payment of costs against it as the proceedings had been brought in the public interest. This submission was founded on the following factors: 1. The Applicant did not have a personal interest in the outcome of the proceedings; 2. The questions raised were matters of public interest in that they related to the management of the environment of the National Park, including the wild horses located within it; and 3. The continued presence of the wild horses in the National Park have been recognised in Kosciuszko Wild Horse Heritage Act 2018 as being a feature of the cultural heritage of the National Park.
2. There is a discretion conferred on the Court in s 4.2(1) of the Land and Environment Court Rules 2007 (LEC Rules) in considering the question of costs in proceedings such as the subject proceedings in the following terms: 4.2 Proceedings brought in the public interest (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest. For the purposes of the exercise of such discretion the relevant applicable principles have been set out in the decision of Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280 (which has been endorsed and applied in similar contexts). The Applicant has identified factors relevant to the principles identified as appropriate for a consideration of the exercise of the discretion.
3. The Respondents do not oppose an order being made in accordance with LEC Rules r 4.2(1), that is, it makes no submission that the proceedings were not brought in the public interest.
4. The Court is satisfied, for the reasons outlined at [70], that the proceedings have been brought in the public interest and the discretion should be exercised to make no order for the payment of costs by the Applicant in these proceedings.

Conclusions and orders

1. For the reasons outlined, Grounds 1 and 2 in the Summons are dismissed. The Activity the subject matter of these proceedings is an Activity the subject of the Horse PoM and carried out in accordance with its terms; and therefore, there is no obligation to further consider the matters in s 5.5 of the EP&A Act.
2. The Court Orders that: 1. The proceedings are dismissed; 2. The Respondents are released from the revised undertaking given to the Court on 9 July 2020; and 3. The exhibits are returned.

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: 17 July 2020