“The Dodgy, the Bad, and the Good – a Community and NGO Perspective on EIA Practice”

Paper delivered to Environment Institute of Australia forum

The Good, the Bad and the Dodgy - Independence and Professional Ethics in Environmental Impact Assessment in NSW

31 May 2005

Jeff Smith, Director
Environmental Defender's Office (NSW)

1. Introduction

When I first started at the EDO (a community legal centre specialising in environmental law) three years ago, there was a fairly compelling and urgent need to assess how we could best make our mark in a changed operating environment. Being an optimist, the pitch was this – in NSW, we are fortunate to often have very good environmental laws in place, with the task being to make best use of these.

The last week has seen me revisit some of these assumptions.

• First, I'm not sure I'm standing true to my optimistic principles. On Wednesday, for example, I went to bed just after half-time for the State of Origin (when QLD were up 19-0). History shows that NSW came back to lead 20-19 before going down 24-20 in a thriller.
• Second, and perhaps more importantly for present purposes, the assumption that NSW has, on balance, good environmental laws needs to be re-assessed. On Friday the NSW Government introduced the Environmental Planning and Assessment (Infrastructure and Other Planning Reform) Bill 2005 (the Infrastructure Bill). This Bill, if passed, will transform Environmental Impact Assessment (EIA) in NSW, but not in a good way.

Both these developments – my seeming pessimism and the proposed new laws – have seen me reverse the order of my original speech in recent days, as well as focus on some of the more structural issues to do with EIA in NSW.

2. What is the Yardstick to delineate between the Dodgy, the Bad and the Good?

2.1. Purpose

As the former Chief Judge of the Land and Environment Court , Justice Pearlman said in Schaffer v Hawkesbury CC

“The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation , and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J. in Prineas at 417 and per Cripps J. in Liverpool City Council at p 20).”

This has been more pithily expressed by Justice Hemmings in Bailey as “to ensure that activities are properly considered and exposed to public comment ”.

2.2. Scope and Adequacy

The test of adequacy is one of substantial compliance with the requirements of the legislative regime (as per Cripps in Prineas ), described by Fisher more prosaically as “a standard neither of perfection nor of incompetence”.

2.3. Explicability

An environmental impact statement must be sufficiently specific to direct a reasonably intelligent and informed mind to the possible environmental consequences of the proposed development (per Cripps J. in Prineas at 417). This is essentially a dictate for clear language.

3. The Dodgy, the Bad and the Good

EIA practice can be good (consistent with the above), bad (non-compliant with the above through weakness or pressure or incompetence) or dodgy (willfully non-compliant or corrupt). The most interesting questions do not, however, take place at an individual level. We all know that people are capable of good, bad and dodgy practices. We also know that, within themselves, people have the capability of being good, bad and dodgy, over time and across their careers. What is more interesting is the ability of the regulatory framework to harness and reward the goodwill of consultants, reduce the incentives for the bad, and weed out the dodgy operators.

3.1. The Dodgy

3.1.1. Circumventable

Developers may sometimes say that their development is too small, and thereby seek to avoid assessment procedures. [1] More important, however, is the view that some developments are too big and too important for the normal rules to apply. One response to this over the years has been to pass special, enabling legislation, either to fast-track the project or to override a decision of the Land and Environment Court. [2]

It is typical of such legislation that appeal rights by the public – on either merits or judicial review grounds - are quashed and that EIA is tailored. A recent example was the Snowy Mountains Cloud Seeding Trial Act 2004 which ousted consideration of all environmental laws, including EIA.

The Infrastructure Bill negates the need for special legislation in NSW. It is, of course, special, facilitative legislation writ large. The proposed laws have been described as disgusting, retrograde and “a developer's banquet”. In 1979, the planning reforms introduced by the Environmental Planning and Assessment Act (EP&A Act), the advent of the Land and Environment Court and open standing provisions allowing for community involvement and enforcement were described as “trail-blazing”. The amendments in the Infrastructure Bill are the direct antithesis of “trail-blazing”, except if you are a developer.

It is scant compensation that there are delicious ironies at the centre of all this.

The first of these is that the need for these special laws has highlighted the paucity of forward planning in NSW over the years. Governments have long been aware of the need for infrastructure planning in terms of transport, water and energy – the undoubted rationale for the laws - and have done little to address the need.

The second delicious irony is the view, expressed to me that the department did not want to see a repeat of the above-mentioned Snowy Mountains Cloud Seeding Trial Act 2004 , a model which many Ministers were attracted to. The solution: to allow all Snowy Mountains legislation under a single law. This approach is analogous to the “w e had to destroy the village to save it” philosophy of warfare.

The Infrastructure Bill will hand largely unfettered discretion to the Minister for Planning regarding the level of environmental assessment, the criteria for approval, the need to consider the views of the public and the procedures governing projects such as coastal development, ports, foreshore sites, the ADI site, and the Redfern-Waterloo Authority. [3] The Bill also concentrates power in the Minister regarding the need for separate approvals on pollution, native vegetation, cultural heritage and so on.

Furthermore, and the presumably necessary corollary of such discretion, the Bill also substantially winds back community involvement regarding critical projects with regard to the ability:

• to be involved pre-approval
• to challenge an approval on legal grounds
• to enforce the approval (such as breaches of pollution licences)
• to seek stop work orders, interim protection orders and notices regarding cultural heritage, threatened species and pollution
• to appeal on the merits

The lack of community oversight will not facilitate good EIA practices; nor will the ability of the Minister to tailor environmental assessment to the circumstances of the case.

3.1.2. Technocratic

As Justices Cripps and Hemmings have noted above, public participation is central to proper and effective EIA. In terms of EIA, public participation has two fundamental benefits:

• It ensures the “buy-in” of local communities.
• It promotes better decision-making, with local communities best placed to provide accurate information on the proposal.

The need for such community involvement was inextricably tied to the passage of the EP&A Act and the advent of the Land and Environment Court. The remodelling of NSW planning laws and the establishment of a specialist Court in 1979 arguably kicked off the development of public interest environmental law in NSW.

This was manifested through the community involvement objects under the new planning laws (s 5 of the EP&A Act) and institutionalisation of the public interest in Court decisions (s 39(4) of the Land and Environment Court Act).[4]

EIA cannot be assessed narrowly in terms of the legislation alone or its practice. Rather, it needs to be assessed at least in tandem with developments in public participation and according to the nature of such rights. The Infrastructure Bill winds back these rights to a time not seen in NSW since before 1979. Critical Infrastructure project approvals are not appealable, reviewable or enforceable without Ministerial consent. It is also of concern that major infrastructure projects treat public participation as discretionary. Community rights should sit alongside developer rights in the legislative framework. For example, while the environmental assessment must be exhibited, there is no requirement for the proponent to respond to the issues raised (except if directed) (75H), the Director General to include submissions in the report to the Minister (75I(2)) or the Minister to take such submissions into account in making his/her decision (75J(2)). Similarly, independent panels may hear from “interested persons”: 75G(4)

3.1.3. Bias

EIA does not suffer from the perception of independence. The EDO has long held concerns about the adequacy of many EISs. By virtue of the fact that the proponent prepares and finances EISs, the outcome is that “objectivity is placed at odds with self-interest” (as Raff has observed). There is an undeniable structural conflict.

The overwhelming majority of consultants are professional and ethical, with a commitment to high personal and professional standards. However, without doubt, there are some dodgy sharks out there.

In a process intended to disperse the mystique of science and technocracy it is not uncommon to find proponents persistently engaging scientific consultants who hold fast to methods which are professionally disputed as outdated or inappropriate and who, perhaps not surprisingly, deliver results favourable to the project.

As I have said before, this is not merely the view of the EDO and other NGOs. At a previous EIANZ forum, the Director General of the Department of Environment and Conservation, Lisa Corbyn, expressed concerns about the substandard nature of many EISs, as well as noting that the agency had its eye on the consultants preparing such reports.

The Infrastructure Bill will not increase the legitimacy of the process. For the first time, it will be an offence under the EP&A Act 1979 to knowingly give false and misleading information. However, these provisions only apply to monitoring and auditing reports (s 122E) not the EIA and, in any event, the penalties are well down on those used under Federal laws. [5]

Such biases are arguably embedded in the system. The community and NGOs remain frustrated with decisions that appear to place socio-economic considerations well above environmental considerations.

Balancing socio-economic benefits against environmental costs is a difficult task and will always be subject to contention.

This has been recognised in New Zealand , where the Resource Management Act 1991 has moved away from this balancing act and directs decision-makers to focus on the environmental effects of a development (Ministry of the Environment (1999) Your Guide to the Resource Management Act p 4).

Similarly, when considering whether an action is a controlled action under the Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC Act), the Minister must only consider adverse impacts and must not consider any beneficial impacts of the action. (EPBC Act s 75(2)(a)(b)).

3.2. The Bad

It is true that many members of the community and NGOs have lost faith in the process and remain frustrated at the outcomes.

3.2.1. Apologia: a process with a predetermined outcome

There is a widely held view in the community and amongst NGOs, and even amongst some consultants, that EIA is merely an approval process with a predetermined outcome – that is, approval of the project.

This perception is supportable. Very few EIA reports conclude that a development would have a significant impact on the environment and should not proceed. Out of the couple of hundred major projects put forward in the last couple of years, only a handful – Kurnell, Redbank II, a pearl oyster farm at Port Stephens and a gravel extraction proposal - have been refused.

The value of EIA in terms of on-ground environmental outcomes therefore often lies solely in its influence over 1) project planning and 2) the setting of conditions of consent.

To a large extent, this is a structural issue. A common problem with EIA is that comprehensive EIA often comes only late in the planning process, when it is too late to properly scope for the development of reasonable alternatives.

Consultants engaged to prepare an EIA report often get involved only after final decisions have already been made in relation to project options and designs – such as after feasibility studies have been undertaken and land acquisition has been made. Budgets and timeframes usually do not account for comprehensive analysis of project alternatives.

In practice then, it becomes the job of the consultant to prepare an EIA report on the option that has been presented to them, with often only a cursory analysis made of alternatives. It also means that when a comprehensive EIA is undertaken and environmental impacts are identified, in reality there is little scope to do anything about them. This may lead to costly disputes involving a ‘winner-takes-all' decision between a development and a threatened species.

3.2.2. Inequity

Developers and public authorities hold many of the cards in the game of EIA. They usually have the advantage of vast financial resources and access to the site.

Limited time to respond to an EIS – generally only 30 days – further increases the imbalance. EISs are often voluminous and require considerable time to plough through. This process is made more difficult when an EIS fails to give a clear description of the proposal and a concerned community member spends much of their time trying to determine what the proposal actually comprises and how it might affect them.

3.2.3. Inadequate

The community and NGOs have lost some faith in the EIA process because they have seen too many decisions made based on grossly inadequate information. There is a very real frustration over the lack of detail in EIA reports on the key environmental issues. A common complaint is that an EIA report is full of information on minor, easy-to-address issues, while the real environmental issues that are more difficult to address are dealt with in a cursory manner.

As noted above, the test is one of substantial compliance with the requirements of the legislative regime. The problem lies more in the application of the test than its formulation. The Land and Environment Court has interpreted substantial compliance in terms of breadth, rather than depth, of coverage: see NSW Land and Housing Corporation v Campbelltown CC; Bell v Shellharbour CC. In NSW Land and Housing Corporation , Justice Bignold noted that the Species Impact Statement (SIS) had substantially complied as there had been no material omission from the required content, but was at pains to note that the test did not go to the merits of what the parties were arguing.

In short, in order to challenge the adequacy of EIA NGOs and the community really need to demonstrate either a lack of coverage of subject-matter or bad faith.

Such inadequacy is particularly manifested in the inability of EIA to deal effectively with the cumulative impacts of developments. EIA has been in place in NSW for over 25 years now, while the state of the environment has continued to decline. We all know the term ‘death by a thousands cuts'.

It is common to see strong opposition to a development due to the precedent that might be set for further approval of similar developments and the cumulative environmental impacts of these. Interestingly, in New Zealand , developments have been rejected by the Courts for this very reason – the Counts maintaining that if the development was approved, it would be very difficult for Council to reject future similar developments (Environmental Law Handbook, Forest and Bird 2004).

Cumulative impacts are often the most inadequately addressed component of an EIA report, and for good reason. It is difficult enough to accurately determine the environmental impacts of a single development, let alone in tandem with existing and likely future developments. In reality, the assessment of cumulative impacts can only ever be made in general terms.

While it may be a requirement of the preparation of EISs, EIA cannot hope to meaningfully address cumulative impacts of development. This can only be adequately dealt with through the planning process – better zoning and development controls, which clearly show, based on good science, where certain developments can and cannot go. Allowing critical infrastructure projects to go ahead in zones that would otherwise prohibit them obviously subverts good planning principles.

3.2.4. Procedure at the expense of common sense

There is also a perception in the community and amongst NGOs that common sense is not always applied to EIA and takes a back seat to meeting procedural requirements, which may not produce ‘good' results. This perception is reinforced by the uncertainty inherent in predicting impacts and the pluralistic nature of impact assessment.

For example, there is a lack of faith in the 8-part test used to determine whether a development will have a significant effect on threatened species. It goes against the common sense of some community members that a development which will destroy 10 hectares of coastal forest will not have an impact on flora and fauna. However, the EIA report concludes ‘no significant impact'. It has met all the requirements of the law and its conclusions are backed-up by a voluminous amount of technical information. But the community member is not convinced.

The tailoring of EIA for major projects is no solution to this broader problem.

3.2.5. Lack of a feedback loop

The Government has made much of its commitment to evidence-based programs in the health and criminal justice arenas. The same degree of rigour is not evident in the field of EIA.

It is a truism that the assessment of impacts is an uncertain science. Buckley and others (such as Sadler) have found a poor fit between the predictions and actual impacts. Moreover, the overwhelming majority of approved developments did not have monitoring conditions and data to allow for the testing of predictions.

By virtue of being a document prepared on behalf of the proponent, the focus being on breadth rather than depth of analysis, and the lack of ongoing monitoring, the findings of most EISs cannot be used to establish a bank of scientific information about local environments. Put another way, such studies thus provide no precedent, often result in a duplication of effort and contribute to the advent of a “grey” literature.

The Infrastructure Bill seeks to deal with this. For example, the Director General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site (s 75F(6)). Also, monitoring and auditing requirements may be required (but only for major projects): ss 122A-122F.

3.3. The Good

There are an enormous number of consultants who have high professional and personal standards, are committed to meeting and observing ethical practices and wish to do well. As a small example of this, over 50 consultants have joined the EDO 's Register to do pro bono work on behalf of the community and we've only begun to scratch the surface.

3.3.1. Accepted

Up until Friday, I would have said EIA was now accepted. It is part of international law, being found in Principle 17 of the Rio Declaration and numerous Conventions (such as the Convention on Biological Diversity Article 14; UN Convention on EIA in a Transboundary Context 1991 ), as well as being used by international funding agencies as a condition precedent for financial assistance.

3.3.2. Educative

EIA, in short, has had an educative effect. It has approached environmental problems from a preventative or mitigatory perspective [6] and the process as a whole may tailor decision-making enormously , such as when development is allowed but with conditions. [7]

This is a far cry from the hostility exhibited to EIA in its formative years, often from public authorities. In the late 1980s, the Forestry Commission was often reluctant to undertake EISs or as Tim Bonyhady has put it “showed a remarkable contempt for the law”.

3.3.3. Degree of accountability

It is also clear that there has been a degree of accountability in the planning system due to the recognised role of the public. Procedural provisions conferring open standing rights in civil proceedings had, until Friday, become commonplace in NSW legislation in the last 25 years. [8] Similarly, we have become used to a suite of other participatory measures in NSW environmental legislation. These include ‘right to information' provisions (such as public registers and rights of inspection); community consultation and notification requirements (including a duty to consider and the giving of reasons); third party merit appeals; joinder; [9] and reviews of Government legislation. [10] In particular, the capacity of the community to pursue both judicial review and merit appeals for major developments has been a limited, but crucial, check on decision-making.

3.3.4. Primacy of the public

In tandem, the Land and Environment Court and others have consistently sought to give substance to the procedural right to be heard, [11] with a well-developed jurisprudence on the public interest and the role of the public in environmental law. [12]

3.3.5. Clear rules

The Courts have also moved towards developing a consistency of approach or “common law of EIA” founded on a well-established legal base. These include:

• the test of adequacy (substantial compliance),
• definition of “environment” (need to consider off-site impacts re Kivi , Jarasius ),
• the need to take a “hard look”(Cripps in Prineas and Liverpool CC v RTA )
• definition of ‘likely' (“real chance or possibility, not more probably than not”)

As Raff has stated:

The standards stand on their own feet as positive law enunciated by courts of record. They are also logical expressions of obligations to society and the environment which can be found jurisprudentially to stem from the precautionary principle, internationally accepted principles of ecologically sustainable development and ultimately the social and environmental obligations inherently constraining what one may do with a resource which one is privileged to own.

There is no doubt that EIA practice has, for all its evident faults, markedly improved the ability of the community to get involved in decisions affecting the environment.

4. Where to from here?

Many of the ideas to make EIA a better and fairer process and to reward the good over the bad and dodgy have been well-canvassed and are obvious – independent panels to review and audit EIA, pools of consultants, intervenor funding, monitoring mechanisms, a higher legal standard for compliance. The fact they have not been adopted and, indeed, new proposals have headed further away from transparency and accountability underscores the political nature of planning and development, rather than a lack of awareness of, and ideas for, the way forward.

Last year I said:

We have certainly come a long way from early practices, under which EIA was little more than a sham, and widely resisted. To become an effective process and one which maintains the faith of the community and NGOs, however, much more needs to be done.

The proposed new laws make it tempting to look back on the soon-to-be-old-regime with a dewy-eyed romantic idealism. This is far from the reality. Nevertheless, advances had been made to level the playing field (including a number of Court initiatives and the establishment of a Scientific Advisory Service at the EDO).

The proposed reforms set us right back. We are on the verge of being further away from having a transparent and legitimate EIA system than I have seen in my professional lifetime. If only EIA were a sport, where miracles still sometimes happen.

1. The EDO has also been involved in matters where developers have sought to avoid their environmental impact assessment obligations. The categorical approach of Schedule 3 of the EPA Regulation 2000 means that developments which may significantly effect the environment but fall below the threshold do not require an EIS. Recent practice in relation to SEPP 71 – Coastal Protection has borne this out, with several examples of development applications being structured so as to avoid the structures of this instrument (which previously required subdivisions of 25 or more lots to be called in).
2. On some occasions the government has legislated to remove the potential for judicial intervention, eg Westfield and Eastgardens, Walsh Bay. On other occasions parliament has legislated to authorise a project which the Court has declared illegal eg Parramatta Park ( Parramatta City Council v Hale (1982) 47 LGRA 319); Bengalla Mine ( Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning & Bengalla Mining Co Pty Ltd (1966) 90 LGERA 1); Clyde Waste Terminal ( Drake & Ors; Auburn Council v Minister for Planning and Anor; Collex Pty Ltd [2003] NSWLEC 270); Fairmont Resort ( Annie Winters v Council of the City of Blue Mountains & Ors, unreported, Land & Environment Court, 18 December 1984). On one occasion the Court was asked by the State Attorney to intervene and declare illegal the decision of the Minister for Planning ( Attorney-General (NSW) v Minister for Planning & Environment (1984) 54 LGRA 189).
3. Almost all coastal development, Chatswood railway interchange, Kosciuszko ski resorts, Kurnell, Newcastle-Honeysuckle, Penrith Lakes, Port sites such as Botany and Sydney Harbour, Rhodes Peninsula, Fox Studios, Moore Park Showground, SCG, Foreshore sites (Circular Quay, Rocks to Dawes Point, Walsh Bay, East Darling Harbour, Darling Harbour, Banks Street, Fish Markets), Specific Suburban sites (Ballast Point, Rozelle marshalling yard, White Bay power station and hotel site, ADI site, Ryde, HMAS Platypus, naval stores, Ermington, Woolwich defence lands), Taronga Zoo, Australian Museum, Redfern Waterloo Authority, Sydney Olympics Park, Housing in Ku-ring-gai and the Sydney Opera House.
4. See Robinson D (1996) “The Environmental Defender's Office, NSW, 1985-1995” Environmental Planning and Law Journal 155 at p 155 and the Keys Young Report at p 3.
5. Section 489 of the Environment Protection and Biodiversity Conservation Act 1999 makes it an offence to provide information that is false or misleading in a material particular.

   “Providing false or misleading information to obtain approval or permit

   (1) A person is guilty of an offence if:

   (a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and

   (b) the person is reckless as to whether the information is false or misleading in a material particular.”

The offence carries a penalty of up to two years gaol for knowledge of the false or misleading nature of the material (one year if reckless to that fact).

6. This in itself has an educative effect in the way we as a society must integrate environmental considerations into decision-making processes around development.
7. For example, the EDO acted in Beemery, where Bruce Wilson on behalf of the Gurrungar Environment Group appealed against a consent for a cotton farm near Bourke on the grounds that it was not ecologically sustainable. The development included a large water storage facility for irrigation and, due to the risk of salinity, had a limited lifespan. The matter finalised with the parties agreeing on stringent consent orders including conditions for groundwater monitoring, controls on clearing and the ban of the use of herbicides in the irrigation area. These conditions set the standard against which future cotton developments will be measured.

   Justice Pearlman, Chief Judge of the Land and Environment Court , highlighted this shift in the operation of environmental law in her Keynote Address to the Australia New Zealand Planning Congress in 2002. The former Chief Judge, Justice Pearlman saw this case as one of five cases as developing environmental jurisprudence in NSW. Her Honour noted that it highlighted the important role that third party objectors can play in protecting natural resources.

8. Section 123 of the (NSW) Environmental Planning and Assessment Act 1979 was the first and has been followed in numerous environmental statutes since then. It has also since become abundantly clear that the public interest embraces the notion of public participation. As Street CJ said in Hannan Pty Ltd v The Electricity Commission of NSW (No. 3) (1985) 66 LGRA 306 at p 313:

The task of the Court is to administer social justice in the enforcement of the legislative scheme of the Act. It is a task that travels far beyond administering justice inter partes.

9. As a result of the amendment accepted by the Government, the Court may, at any time, on the application of a person or of its own motion order the joinder of a person as a party to an appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979 , if the Court is of the opinion:

   (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

   (b) that:

   (i) it is in the interests of justice, or

   (ii)  it is in the public interest,

   that the person be joined as a party to the appeal.

Such a provision is entirely consistent with the public nature of environmental law and further adds to the public's right of access to the Courts.

10. See, for example, Defending the Environment: Standing in the Public Interest (March 1997) a submission to the Attorney-General's Department in response to the Australian Law Reform Commission's Recommendations on Standing ALRC Report # 78. Other subject-specific submissions undertaken by the EDO seek to embed public participation provisions within the regulatory framework: see, for example, The Protection of the Environment Operations Bill – the Solution to Pollution; Mining Law Reform – a Preliminary Discussion Paper; Joint submission on planFIRST – White Paper on Review of Plan Making in NSW; Submission on behalf of the EDO National Network regarding the Heritage Amendments.
11. “ Relaxing the traditional requirements for standing may be of little significance unless other procedural reforms are made. Particularly is this so in the area of funding of environmental litigation and the awarding of costs. There is little point in opening the doors to the courts if litigants cannot afford to come in”: Toohey (1989) “Environmental Law – Its Place in the System” in Proceedings of the First NELA/LAWASIA International Conference on Environmental Law June 1989 at p 79. The passage is also contained in the judgment of Justice Stein in Oshlack v Richmond River Council and Iron Gates Development Pty Ltd (1994) 82 LGERA 236.
12. For instance, the case of Oshlack v Richmond River Council went to the High Court on the issue of costs. In this “key case”, the High Court agreed with Stein J at first instance in the Land and Environment Court (as he then was) and affirmed the width of the discretion of that Court in awarding costs, including the relevance of public interest litigation: see Oshlack v Richmond River Shire Council & Anor (1994) 82 LGERA 236; (1996) 91 LGERA 99; and (1997) 96 LGERA 173]. In this case, the High Court endorsed Stein J's decision that there be no order as to costs and agreed that “public interest” litigation may, in certain circumstances, constitute special circumstances to enliven the discretion not to award costs in section 69 of the Land and Environment Court Act 1979.

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