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

[2023] NSWLEC 80

Land and Environment Court

New South Wales

Medium Neutral Citation:

National Parks Association of NSW Inc v Minister for Environment and Heritage [2023] NSWLEC 80

Hearing dates:

04 May 2023

Date of orders:

04 May 2023

Decision date:

04 May 2023

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [24] and [25]

Catchwords:

COSTS — Application for protective costs order limiting costs recoverable by either party — Judicial review of a decision to adopt an amendment to a provision of a national park management plan — Factors to consider in making protective costs order — Whether litigation brought in the public interest — Protective costs order made

Legislation Cited:

National Parks and Wildlife Act 1974 (NSW), ss 72AA, 73B

Uniform Civil Procedure Rules 2005 (NSW), r 42.2

Cases Cited:

Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; (2009) 170 LGERA 1

Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424

Nerringillah Community Association Inc v Laundry Number Pty Ltd [2018] NSWLEC 157; (2018) 236 LGERA 102

Texts Cited:

Kosciuszko National Park Plan of Management 2006, s 12.6

Category:

Costs

Parties:

National Parks Association of NSW Inc (ABN 67 694 961 955) (Applicant)
Minister for Environment and Heritage (Respondent)

Representation:

Counsel:
M R Hall SC (Applicant)
I J King (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Department of Planning and Environment (Respondent)

File Number(s):

2023/00058705

Publication restriction:

Nil

EX TEMPORE JUDGMENT

1. By notice of motion filed 5 April 2023, the National Parks Association of NSW Inc (‘National Parks Association’) seeks a protective costs order pursuant to r 42.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) limiting the costs recoverable by one party from another in the underlying judicial review proceedings before this Court to the sum of $20,000.

2. The hearing of the notice of motion proceeded before me today, with Mr M R Hall of senior counsel appearing for the National Parks Association, and Ms I J King appearing for the Minister for Environment and Heritage (‘Minister’).

3. The Minister neither supported nor opposed the making of a protective costs order.

Background

4. The primary proceedings were brought by the National Parks Association by way of summons filed 21 February 2023 seeking judicial review of the purported decision of the Minister on 1 September 2022 to adopt an amendment in relation to the application of s 12.6 of the Kosciuszko National Park Plan of Management 2006 to a particular project known as the Snowy 2.0 “Transmission Connection Project” (‘Snowy 2.0 Project’); and consequential declaratory relief in relation to that decision.

5. While not material to the resolution of the notice of motion presently before me, I note for context that the amendment adopted by the decision under challenge has the effect of exempting the Snowy 2.0 Project from complying with a requirement that any telecommunication or transmission lines be located underground. This amendment appears critical in circumstances where the Snowy 2.0 Project involves:

"constructing and operating two new 9 kilometre long double circuit overhead transmission lines from the cable yard in Kosciuszko National Park to a new substation outside the park."

6. The concern raised by the National Parks Association in the substantive proceedings concerns the implication of the amendment, in particular in relation to the construction of a nine-kilometre-long double circuit overhead transmission line proposed by the Snowy 2.0 Project which, but for the amendment the subject of the decision under challenge, would be required to be located underground by application of the plan of management previously in force.

7. The National Parks Association pleads that the proposed amendment was not prepared by the Secretary in accordance with the NationalParks and Wildlife Act 1974 (NSW) (‘National Parks and Wildlife Act’) in that the matters listed in s 72AA of the Act were not taken into consideration. As such, it is alleged that the Minister erred in law and misconstrued its jurisdiction under s 73B(1) of the National Parks and Wildlife Act when purporting to determine the amendment to the plan of management.

Evidence

8. In support of its notice of motion, the National Park Association reads two affidavits of Gary Dunnett affirmed 21 February 2023 and 12 April 2023.

9. In the interests of brevity, I will not detail Mr Dunnett's evidence. I nevertheless take notice of the following matters deposed to by Mr Dunnett primarily in relation to the National Parks Association, and which I find to be of relevance to my consideration of the notice of motion:

1. The National Parks Association was established in 1957, with initial objects in relation to the preservation of the natural condition, as far as possible, of national parks in NSW;

2. At present, the National Parks Association has approximately 4,000 members across NSW;

3. Pursuant to the National Parks and Wildlife Act, the National Parks Association has been granted a role in the planning and management of national parks in NSW;

4. The National Parks Association has been advised that the Minister’s costs of defending the proceedings are likely to be in the vicinity of $75,000 to $100,000.

5. The National Parks Association receives no government or corporate funding such that all of its income comes from membership fees and donations.

6. The National Parks Association has relied for many years on limited costs agreements and/or pro bono legal advice. Mr Dunnett deposes that in relation to the present proceedings both solicitors and counsel are providing their services on a reduced cost basis.

7. Neither the National Parks Association nor any of its members stand to derive any benefit (financial or otherwise) from this litigation.

8. The National Parks Association considers that the operation of s 72AA of the National Parks and Wildlife Act raises matters of fundamental importance for any future plans of management for new national parks, insofar as it concerns the proper process to be undertaken by the Secretary in considering any proposed amendments to future plans of management. Mr Dunnett deposes that the National Parks Association’s intention in running the case is to resolve this issue, not only in relation to these particular factual circumstances, but for the benefit of any new plans of management and/or any future amendments.

9. To the knowledge of the National Parks Association, no substantial overhead transmission lines have been built in national parks located in NSW over the last 50 years.

10. Mr Dunnett's affidavit of 12 April 2023 annexes an exhibit marked “A” which contains further material in relation to the background of the National Parks Association set-up, including its Constitution and governing rules, and various other matters in relation to the statutory role of the National Parks Association in relation to areas of protected management.

11. The matters raised in Mr Dunnett's affidavit were further emphasised by Mr Hall in his oral submissions.

Consideration

12. The principles applicable in relation to the grant of protective costs orders are well established.

13. In Blue Mountains Conservation Society Inc v Delta Electricity [2009] NSWLEC 150; (2009) 170 LGERA 1, Pain J recorded the various matters relevant to whether to make a protective costs order under r 42.2 of the UCPR. By majority, the NSW Court of Appeal upheld her Honour’s decision in Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424. The relevant authorities were subsequently conveniently summarised and applied by Pepper J in Nerringillah Community Association Inc v Laundry Number Pty Ltd [2018] NSWLEC 157; (2018) 236 LGERA 102 at [59]-[71].

14. Whilst I am reluctant to reduce discretionary considerations to a “shopping list”, I consider the following factors to be relevant to the exercise of my discretion to make a protective costs order:

1. Whether the matters are of general public importance;

2. Whether there is a discrete public interest in the issue to be determined;

3. Whether the applicant or its constituents has any private interest in the outcome of the case;

4. The financial circumstances of the applicant as opposed to, and compared to, that of the respondent;

5. Whether the absence of an order may affect in one way or another the likelihood that the case will be discontinued; and correspondingly, the existence of a concern in relation to access to justice; and

6. Whether the normal access to justice principles should be applied.

15. In considering the parties’ submissions as to the appropriateness of a protective costs order being made in these proceedings, I remain mindful of the extra-curial comment made by Toohey J in an address to the International Conference on Environmental Law in 1989 in respect of public interest, that "[t]here is little point in opening the doors to the courts if litigants cannot afford to come in."

16. Applying the principles noted earlier, and having considered the evidence before me, I am of the view that it is appropriate for the order sought in the summons to be made. My reasons may be shortly stated.

17. First, it is noncontroversial that the lawful management of the Kosciuszko National Park, and of national parks located in NSW generally, involves public law obligations that arise from widely shared environmental and heritage concerns. As such, I find that the underlying judicial review proceedings brought by the National Parks Association seek to raise matters that are of some general public importance.

18. Second, I accept the uncontested evidence that, the National Parks Association’s purpose in commencing this litigation extends beyond the facts of this particular case and seeks clarification of the operation of s 72AA of the National Parks and Wildlife Act as it relates to the management of plans generally.

19. Third, I take into account that neither the National Parks Association, nor any of its members, stand to derive any benefit (financial or otherwise) from these judicial review proceedings.

20. Fourth, I give weight to the National Parks Association’s limited financial resources and accept that this case is somewhat unusual because the Association is not merely a concerned grouping of citizens, but rather a relatively sophisticated, experienced, and obviously concerned conservation group which has been actively involved for many years in the protection of the national parks located in NSW.

21. Fifth, I find that the public interest weighs in favour of the protective costs order sought in the notice of motion.

22. While it is difficult for a judge in an interlocutory matter to form a view about the proportionality between the likely costs of the substantive proceedings and the issues anticipated to be raised by the parties, these concerns are somewhat alleviated by evidence that the likely costs of the Minister defending these proceedings are likely to be in the vicinity of $75,000 to $100,000 and the fact that $20,000 has been proffered as the proposed order. I further note that, on specific instructions, there is no counter suggestion made by the Minister to the effect that, if the Court was so minded to make a protective costs order in the sum of $20,000, that would not be an appropriate amount.

23. I am of the view that this is an appropriate case for a protective costs order to be made, and I make orders in accordance with the relief sought in the notice of motion. I reserve costs on the motion.

Orders

24. The orders of the Court are:

1. The costs of the Notice of Motion filed 5 April 2023 are reserved.

2. The matter is set down for Hearing at 10.00am on 3 August 2023.

3. The matter is listed for Pre-trial Mention at 9.15am on 27 July 2023.

Addendum made on 9 May 2023

25. I gave judgment on this interlocutory matter on 4 May 2023 granting the notice of motion, and I directed the parties to provide Short Minutes of Order setting out an agreed timetable for the preparation of the matter for hearing. Those agreed Short Minutes of Order were subsequently received and made in Chambers on 9 May 2023.

Decision last updated: 25 July 2023