Snowy Mountains Brumby Sustainability & Management Group Incorporated v State of New South Wales and Anor [2020] NSWLEC 92

Snowy Mountains Brumby Sustainability & Management Group Incorporated v State of New South Wales and Anor [2020] NSWLEC 92

The Proposed Action was properly characterised as the use of land for the capture and removal of wild horses from within Kosciuszko National Park and associated works, and therefore was an activity within s 5.1 of the Environmental Planning and Assessment Act 1979. It was not exempt development because s 1.6(2), not s 1.6(1), defines exempt development. However, the Proposed Action fell within and was authorised by the Kosciuszko National Park Horse Management Plan 2008, including for the Cooleman Plain Management Unit, safety risk areas and areas where horses had only recently been recorded. Because the Applicant did not challenge the sufficiency of the assessment undertaken when the...

Jurisdiction
Australia
Judgment Date
17 July 2020
Procedural Posture
Class 4 Judicial Review Proceedings Seeking to Restrain Wild Horse Management Activities in Kosciuszko National Park / Principal Judgment After Hearing
Outcome
Grounds 1 and 2 were dismissed; the proceedings were dismissed; no order was made for costs because the proceedings were brought in the public interest.
Legal Topics
['part 5 Environmental Assessment' 'duty to Consider Environmental Impact' 'use of Land' 'exempt Development' 'plan of Management' 'wild Horse Management' 'public Interest Costs']
['environment and Planning' 'judicial Review' 'national Parks and Wildlife' 'costs'] ['part 5 Environmental Assessment' 'duty to Consider Environmental Impact' 'use of Land' 'exempt Development' 'plan of Management' 'wild Horse Management' 'public Interest Costs']

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Procedural Posture

Class 4 Judicial Review Proceedings Seeking to Restrain Wild Horse Management Activities in Kosciuszko National Park / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed capture and removal of wild horses from targeted areas of Kosciuszko National Park was an activity within s 5.1 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed action was exempt development and therefore excluded from the definition of activity.' 'Whether the determining authority was required to undertake further consideration under s 5.5(1) of the Environmental Planning and Assessment Act 1979 or whether the duty had been discharged by adoption of the Kosciuszko National Park Horse Management Plan 2008.' 'Whether the proposed action complied with s 81 of the National Parks and Wildlife Act 1974 by being in accordance with the relevant plans of management.' 'Whether the applicant, though unsuccessful, should pay costs where the proceedings were brought in the public interest.']

Ratio Decidendi

The Proposed Action was properly characterised as the use of land for the capture and removal of wild horses from within Kosciuszko National Park and associated works, and therefore was an activity within s 5.1 of the Environmental Planning and Assessment Act 1979. It was not exempt development because s 1.6(2), not s 1.6(1), defines exempt development. However, the Proposed Action fell within and was authorised by the Kosciuszko National Park Horse Management Plan 2008, including for the Cooleman Plain Management Unit, safety risk areas and areas where horses had only recently been recorded. Because the Applicant did not challenge the sufficiency of the assessment undertaken when the...

Court Disposition

Grounds 1 and 2 were dismissed; the proceedings were dismissed; no order was made for costs because the proceedings were brought in the public interest.

Orders

  • ['The proceedings are dismissed.' 'The Respondents are released from the revised undertaking given to the Court on 9 July 2020.' 'The exhibits are returned.' 'No order for the payment of costs by the Applicant.']