Posted on January 27, 2021 by Megan Hawley and Katie Mortimer 45

Coastal Management Programs and Public Interest Litigation

Late last year, litigation involving a challenge to the validity of a coastal zone management plan was finalised with implications for the making of coastal management programs (CMPs).

The proceedings were commenced by Boomerang and Blueys Residents Group Inc (BBRG), and are the only proceedings which have resulted in a decision on a judicial review challenge to a coastal zone management plan or CMP (see Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 2) [2019] NSWLEC 202 (BBRG No. 2)).

In Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 3) [2020] NSWLEC 150 (BBRG No. 3), a decision on costs, Robson J of the Land & Environment considered whether the litigation was brought in the public interest, for the purpose of determining whether the usual rule that costs follow the event (i.e., are paid by the unsuccessful party) should not apply.

The Facts

BBRG brought judicial review proceedings against the New South Wales Minister for the Environment, Heritage and Local Government (Minister) and MidCoast Council (Council) challenging the validity of the Great Lakes Coastal Zone Management Plan (CZMP), which categorised coastal hazards at Blueys Beach and Boomerang Beach (Beaches) as ‘immediate, intolerable risk‘ and ‘extreme or high risk‘.

The CZMP had been made under the Coastal Protection Act 1979 (CP Act) before it was repealed. Under the Coastal Management Act 2016 (CM Act), CMPs are prepared and adopted instead of CZMPs.

BBRG submitted that the CZMP should be set aside in whole or in part on a number of grounds which included that the CZMP did not comply with the requirements of the CP Act or the Guidelines for Preparing Coastal Zone Management Plans (Guidelines) and the categorisation and assessment of the coastal hazards at the Beaches in the CZMP was legally unreasonable.

There were a number of other grounds of appeal and overlap between the various grounds. One ground was the deficiency of information on which the CZMP was based, and the Court expressed real doubts as to whether that was a ground of administrative review.

The Court’s Findings on Challenge to CZMP

The Court found that BBRG had failed to establish any of its grounds of challenge and dismissed its application.

Whether there was non-compliance with the CP Act and Guidelines

The Court found that the CP Act and the Guidelines had been complied with.

The Court referred to the process for the making of a CZMP under the CP Act which involved:

• preparation by the Council;
• certification by the Minister that the CZMP had been prepared in accordance with the CP Act; and
• making of the CZMP by gazettal.

The Court found that the key decision was that of the Minister to certify that the CZMP was made in accordance with the CP Act. If the Minister did so and the Minister’s decision was not in legal error, whether or not the CZMP was in accordance with or complied with the Guidelines was irrelevant. Robson J said:

‘I consider that the statutory scheme leaves the issue of whether the draft plan has been prepared in accordance with the requirements of the CP Act to the Minister, and, as I have noted separately, this is assessed when the Minister determines whether or not to certify the plan. Unless the Minister has made some justiciable legal error in the process of making her certification decision, whether the CZMP is in accordance with …the Guidelines is, as a matter of fact, irrelevant’

The Court went on to find that compliance with the Guidelines in preparing a CZMP was not mandatory, as the Guidelines did not have a rule-like quality. Rather, they ‘simply provide a “framework”‘ for preparing a CZMP, and the legislature intended for them to be directory rather than mandatory (see [222], BBRG No. 2). This was supported by the fact that the CP Act referred to a CZMP being prepared ‘in accordance with’ the Guidelines, rather than ‘pursuant to‘ the Guidelines.

Under the CM Act, the Minister must now certify that a CMP has been prepared in accordance with the CM Act and the coastal management manual. The manual is, however required to have some mandatory requirements, and it is possible a Court would find that those requirements are intended to be strictly complied with. However, it will still be a matter for the Minister when certifying the CMP to determine whether or not it complies with the CM Act and manual.

The scope for judicial review of a CMP is therefore limited to the reasonableness of the Minister’s certification decision.

Whether there was a rational basis for the risk assessment in the CZMP

BBRG argued that the method adopted in the CZMP of considering the likelihood of a hazard occurring and the consequences of the hazard in determining risk was irrational.

The Court considered that ‘the primary question is whether [the] particular approach, which uses “consequences” as a component in determining risk, is one that is illogical and irrational in the circumstances’ . The Court accepted Council’s submission that ‘the risk analysis undertaken in the plan did not necessarily have to be based only upon the likelihood of an occurrence of various hazards, but could also deal with the consequences thereof‘ (see [255], BBRG No. 2).

The Court also held that the CP Act and the Guidelines left it to the discretion of the Council to determine how it would address matters in the CP Act and the Guidelines regarding risk assessment. In this regard, the Court found that:

‘… apart from the mandatory content requirements in s 55C of the CP Act and the obligation in s 55D(1) to prepare a draft CZMP in accordance with the Guidelines, Council’s discretion in preparing the draft plan was unconfined… so long as the draft plan adhered to the Guidelines… , the manner in which Council chose to address the discrete matters in s 55C was a matter for Council’s judgment and discretion‘ (see [214], BBRG No. 2).

It was therefore open for the Council to adopt its own risk assessment methodology.

Whether the decisions of the Minister and the Council were unreasonable

The Court did not consider that the decision of the Minister to certify the CZMP, and the decision of the Council to subsequently adopt it, lacked an ‘evident and intelligible justification’, and therefore the decisions were not legally unreasonable.

In this regard,  the Court considered that: ‘… the decisions reached were ones that were reasonably open to both Council and the Minister. As is well accepted, whether an opinion of a decision-maker is sound or not is not a question for decision by a court’ (see [272], BBRG No. 2).

Public Interest Litigation

In BBRG No. 3, the Court considered if the proceedings had been brought by BBRG in the public interest such that the usual rule that the unsuccessful party would bear the costs of the proceedings should not apply.

The accepted legal position, based on the case of Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No. 3) (2010) 173 LGERA 280,  is that costs will be borne by the unsuccessful party unless:

• the proceedings are brought in the public interest;
• there is ‘something more‘ than the mere characterisation of the proceedings as in the public interest; and
• there are no countervailing circumstances, such as disentitling conduct of the applicant.

The Court held that, although the litigation had some public interest characteristics, including the enforcement of public law obligations, the nature and extent of the public interests involved were relatively limited and BBRG had failed to show that the litigation featured ‘something more‘ to justify a departure from the usual costs rule.

In particular, the Court considered that:

‘… the interests of the applicant were confined to a relatively small number of members who were concerned with relatively private interests. Further, I do not consider the prime motivation of the litigation was to uphold the public interest in the rule of law, or that the litigation directly sought to uphold the public interest of environmental protection.

…

Although not determinative, I consider that a primary motivation in bringing the proceedings related to the effect of the hazard classification on the property values of a number of the applicant’s members … Further, … there was an enduring concern residing with the applicant to vindicate rights of a commercial and/or private character…

…

Further, I consider that the narrowness of the question, which was required to be determined did not, in my view, involve a discrete point of interpretation that had broad ramifications.’ (see [81], [88], [90], BBRG No. 3).

Implications

The decision in BBRG No. 2 should give councils comfort as it confirms that councils have a very broad discretion in the preparation of draft CZMPs and CMPs, albeit that the mandatory requirements of the coastal manual should be complied with (both under the CM Act and also to have the advantage of the statutory good faith defence under s733 of the Local Government Act 1993).

Any challenges to a CZMP or CMP are also likely to be limited to the legal reasonableness of the Minister’s certification decision.

Whilst a local action group challenge to a CZMP or CMP is likely to have some public interest component, where there appears to be a primary motivation of protection of property values, it is unlikely that the action group would be able to avoid a costs order if unsuccessful. This may dissuade many groups from taking action.

The decisions in BBRG No. 2 and BBRG No. 3 can be read here and here.

If you’d like to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Megan Hawley on 8235 9703.