Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Royal Botanic Gardens and Domain Trust

February & May 2011

EDO NSW, on behalf of Bat Advocacy NSW Inc, bought proceedings in the Federal Court challenging a decision of the Minister for Environment Protection, Heritage and the Arts under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to approve the dispersal of grey-headed flying-foxes from the Royal Botanic Gardens in Sydney.

The Botanic Gardens colony of flying foxes is one of the largest camps in the Sydney metropolitan area. Occupancy at the gardens has been recorded at as high as 35,000 bats, representing approximately 8.5% of the total species population. Loss of roosting habitat is identified in the National Recovery Plan for the grey-headed flying fox as a high priority threat and the impacts of loss of long-term camps is not known. The challenge was brought on the grounds that the decision was an improper exercise of power conferred by sections 130(1) and 133 of the EPBC Act because the Minister failed to take into account a number of key matters.

In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113, Justice Cowdroy dismissed the application, rejecting all four grounds of appeal. The Court was satisfied that the Minister had regard to the impact of the action on critical habitat, social matters, the term of the approval and matters raised in public submissions, taking into account the documents before the Minister and the conditions of consent imposed.

Bat Advocacy appealed Cowdroy’s decision in relation to ground one only. The Full Court of the Federal Court dismissed the appeal in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59. Bat Advocacy made submissions that it should not be required to pay costs as the proceedings were bought in the public interest. In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) [2011] FCAFC 84 the Full Court rejected its application, finding that Bat Advocacy had not make out a basis for a special costs order.

EDO NSW thanks Geoffrey Kennett and Jason Lazarus of counsel for their work on this matter.

Judgment - Order on costs

Case Summary Judgment  Appeal