Green light for more power lines through Riverina national park as case dismissed

The Snowy 2.0 Project is set to increase the generating capacity of the Snowy Mountains Hydro-Electric Scheme through the linking of the Tantangara and Talbingo reservoirs and the construction of an additional underground power station.

The project will involve the construction of additional electricity transmission lines in the national park.

On September 1, 2022, the minister for environment and heritage amended the Kosciuszko National Park plan of management (POM) to allow for the construction of telecommunication and transmission lines above ground as part of that project.

The POM, which came into force in 2006, clearly states that "all additional telecommunication and transmission lines...be located underground."

However, the minister used powers under section 73B(4) of the National Parks and Wildlife Act 1974 (NPW) which allow them to amend, alter, cancel or replace a plan of management "on the recommendation of the responsible authority."

In this case, the "responsible authority" was the secretary of the department of planning and environment (Secretary).

The process for amending the POM is regulated by other provisions in the act, with s73B(7) stating that section 72AA, among others apply.

Section 72AA outlines a range of matters that must be taken into consideration when preparing a plan of management, including protection of the environment, threatened species, protection of object, places and structures of cultural significance, maintenance of natural processes, protection of landscape values, the rehabilitation of landscapes and fire management.

Following the minister's decision, the National Parks Association of NSW (NPA) sought a judicial review, raising particular concern as to whether appropriate consideration of sections 73B and 72AA was given before the minister signed off on the amendment to allow overhead powerlines through the national park.

The NPA argued the minister had not taken into account the appropriate matters prior to public consultation and public exhibition of the amendment, which occurred before it was approved.

On December 22, Chief Judge Brian Preston upheld the minister's decision and ruled that appropriate consideration had been given by the minister.

He found the NPA did not prove the minister failed to comply with the NPW Act.

In contrast, Judge Preston noted evidence was given, unchallenged, that the relevant section of the NPW Act had been taken into consideration both before and after the public exhibition period.

Judge Preston also noted NPA commenced proceedings two months and three weeks after the three-month limitation for judicial reviews expired.

NPA argued the matter should still be heard despite the late commencement of proceedings as the NPA had a "particular interest in the conservation and proper management of national parks" and therefore in challenging the decision to allow overhead transmission lines in the park for Snowy 2.0.

NPA argued the proceedings would also advance the public interest and said it had been delayed due to several factors including that it first found out about the minister's decision "some four weeks after" the minister made it.

Under these circumstances, Judge Preston decided to grant an extension of that time limit.

But, despite the extension the judge ruled last week to dismiss the matter.

Nevertheless, Judge Preston found the court case was in the public interest and proposed that "no order for costs... be made unless the minister makes an application for an order that NPA pay [the costs for their proceedings]."

Judge Preston gave the minister's office until January 25, 2024, to apply for an order for their proceedings costs to be paid.

In reply, NPA president Grahame Douglas said the association was "disappointed" by the court's judgement.

"It is a decision which goes to the heart of making plans of management across NSW," Mr Douglas said.

"It is also one we will have to look at and scrutinise carefully with our legal representatives."

With the court now in recess over the Christmas holidays, Mr Douglas said there was currently "very little opportunity to consider that judgement in full".

"However, we will clearly be looking at discussions with the government for any possibility of reform that may be necessary as a result of the judgement," he said.

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 across the state.