EDO NSW Bulletin SPECIAL BULLETIN

This special release EDO eBulletin provides coverage of some of the recent casework that the EDO has been involved with.

EDO Casework

1. Court of Appeal decision: Minister for Planning v Walker [2008] NSWCA 244
On 24 September 2008, the Court of Appeal handed down a decision overturning the decision of Justice Biscoe in the Land and Environment Court in Walker v Minister for Planning [2007] NSWLEC 741. The Court of Appeal found that ecologically sustainable development was not a mandatory relevant consideration under Part 3A of the Environmental Planning and Assessment Act 1979.

The EDO acted for resident Jill Walker in judicial proceedings in the Land and Environment Court challenging the decision made by the Minister for Planning to approve a concept plan for residential subdivision and construction of a retirement development at Sandon Point. The challenge was made under ss75O and 75P of the Environmental Planning & Assessment Act 1979 (‘EP&A Act').

In Land and Environment Court proceedings before Biscoe J, Jill Walker was successful on the ground that the Minister failed to consider ecologically sustainable development (ESD), specifically that climate change could increase the risk of flooding on the site, which was flood-prone land in the coastal zone. Justice Biscoe reached this conclusion through finding that the Minister had to consider the public interest by virtue of clause 8B of the Environmental Planning and Assessment Regulation 1997, which requires the Director General to include in his report matters he considers relevant to the public interest. His Honour then found that ESD was a necessary component of the public interest which the Minister had failed to consider. As a consequence, the Court made orders invalidating the Minister's decision to approve the concept plan.

The Minister appealed the decision of Biscoe J in the Court of Appeal. The matter was heard on 24 July 2008. In the appeal, Jill Walker argued that having regard to the scope, purpose and objects of the EP&A Act, ESD was a mandatory relevant consideration under Part 3A of the EP&A Act. On 24 September 2008, the Court handed down its findings, overturning the decision in the Land and Environment Court and reinstating the Minister's decision to approve the concept plan.

The Court of Appeal found that ESD was not a ‘mandatory relevant consideration' under Part 3A of the EP&A Act. It stated that the Minister must consider the ‘public interest' in all decisions made under the EP&A Act and that the public interest is ‘so central to the task of a Minister fulfilling functions under a statute like the EP&A Act that … it goes without saying.' However, the Court found that although the Minister must consider the public interest, the Minister is not required to have regard to each aspect of the public interest in each particular case. The Court further said that a failure to consider an object of the EP&A Act, including ESD, even of relevant, would not, without more, make a decision void. Therefore, ESD was only required to be considered in those matters where it was materially relevant. Hodgson JA did however state that ‘ESD principles are likely to come to be seen as so plainly an element of the public interest … that a failure to consider them will become strong evidence of a failure to consider the public interest.'

2. NSW Land and Environment Court decision: Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) [2008] NSWLEC 272
On 2 October 2008, Justice Biscoe in the Land and Environment Court delivered judgment on costs in the Anderson decision, challenging a development approval by the Minister for Planning. Aboriginal Elders Douglas and Susan Anderson brought unsuccessful judicial review proceedings challenging the validity of a development consent issued by the Minister for Planning for a housing subdivision at Angels Beach Drive, East Ballina. The EDO represented the Andersons at the costs hearing.

The Anderson's submitted that as the proceedings were brought in the public interest, the court should depart from the usual rule of ‘loser pays the winner's costs' and make no order as to costs - with the effect that each party to the proceedings cover their own costs of the proceedings. This application was made on the grounds of rule 4.2 ‘Proceedings brought in the public interest' of the Land and Environment Court Rules 2007, which came into force on 28 January 2008. The rule states: ‘The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.'

The EDO made extensive submissions on the need to encourage access to justice to public interest litigants. They also made detailed submissions about the Anderson's long fight to protect the site.

Justice Biscoe held that for the court to exercise this power, there had to be ‘an additional factor contributing to a finding of special circumstances which justifies departure from the usual costs order', or that the nature of the public interest had to be ‘of such moment or magnitude as to be sufficient to depart from the usual order as to costs.'

In his judgement, Justice Biscoe held that it was not appropriate for him to exercise the Court's power under rule 4.2 in this case, choosing not to depart from the usual costs order. Several grounds for the decision were provided, primarily that the Andersons had not had the agreement of the local Aboriginal community in bringing the proceedings. Whilst litigation was entered on behalf of the Numbahjing Clan, Biscoe J was dissatisfied with the evidence of the Clan's support for the applicants' proceedings. He also held that there was no additional factor to public interest existing in this case that amounted to special circumstances.

The EDO are disappointed with this judgement and will continue to work on law reform to ensure Aboriginal elders do not have to pay costs when they are seeking to protect their cultural heritage.

3. NSW Land & Environment Court proceedings: Tomsys Timber Pty Ltd v Clarence Valley Council & Elland Preservation Association Inc
The EDO Northern Rivers acted for the Elland Preservation Organisation Inc (EPO). EPO was concerned about the impacts a proposed major sawmill development would have on environmentally significant rural land in the Clarence Valley. The development is proposed on environmentally constrained land and at the top of a water course that feeds directly into a significant wetland before feeding into the Orara River.

Clarence Valley Council has refused the development application lodged by Tomsy's Timbers (the sawmill company) on three separate occasions. The proponent appealed to the Land and Environment Court challenging Council's refusal. Council refused the development application on a number of legal and environmental grounds. Further, Clarence Valley Council has a sustainability initiative and Industrial Lands Strategy that when applied has the result that this type of major industrial development should only be considered on lands appropriately zoned ‘industrial'.

As the proposal is classed as ‘designated development' under the Environmental Planning and Assessment Act 1979, EPO joined the proceedings in order to raise a number of environmental matters that Council had failed to address in its case. The main arguments the EPO sought to raise before the Court were that the proposal will have an unacceptable impact on water quality and cause water pollution and that it will adversely affect threatened species. In addition to this, the group argued that the Environmental Impact Statement (‘EIS') prepared by the proponent was substantially inadequate and did not comply with the statutory requirements for an EIS.

The proceedings were initiated by Tomsy's Timbers in April 2008. After EPO filed its expert evidence in the matter, on 18 September, only 2 weeks before a 5 day hearing was scheduled, Tomsy's Timbers submitted to the Court that it wished to discontinue the proceedings. EPO had no alternative but to settle its objection to the discontinuance, however this was done on the basis that Tomsy's pay EPO's legal costs to date.

4. NSW Court of Appeal: Hastings Point Progress Association v Tweed Shire Council & Aeklig P/L
EDO Northern Rivers acted for Hastings Point Progress Association Inc (HPPA) in NSW Land and Environment Court proceedings unsuccessfully challenging a development consent granted by Tweed Shire Council to allow a three-storey retirement home development in the coastal hamlet of Hastings Point on the Tweed Coast.

Aeklig Pty Ltd seeks to construct a resort-style seniors living development in the coastal hamlet of Hastings Point on the Tweed Coast. The building will be the first of its kind in the hamlet and will change the current character of the hamlet.

HPPA has appealed the Land and Environment Court decision, where the Court held that State Environmental Planning Policy (Seniors Living) (SEPP SL) overrides a critical clause of the Tweed Local Environmental Plan (Tweed LEP). Despite this conclusion by Pain J, no decision regarding the correct approach to inconsistencies between the two plans was in fact made.

The Tweed LEP requires that the cumulative impacts of a development upon the community, catchment and locality must be considered before any development consent can be granted for developments within the Tweed Shire. The HPPA is concerned that the wrong application of the SEPP SL may have serious adverse impacts upon other localities where local planning controls provide particular protections that the SEPP SL does not legally intend to override.

The matter goes before the NSW Court of Appeal on 23 October 2008 for directions hearings.

5. Federal Court proceedings (EDO Queensland): Wide Bay Burnett Conservation Council Inc v Burnett Water Pty Ltd
Wide Bay Burnett Conservation Council Inc (WBBCC) has recently initiated proceedings seeking a mandatory injunction under the Environment Protection and Biodiversity Conservation Act 1999 (‘EPBC Act'), against company Burnett Water Pty Ltd for a breach of their development approval conditions in constructing the Paradise Dam on the Burnett River in Queensland.

Under condition 3 of their development approval (granted under s133 of the EPBC Act), Burnett Water Pty Ltd were required to install and operate continuously until 1 January 2052 a fish transfer device likely to allow any normal sized Australian lungfish to move upstream and downstream of the dam without injury.

WBBCC claim that the fish transfer device fails to allow the movement of the fish without injury for various reasons, including that the entrances to and the caged container in the device are too small for adult lungfish, that the fishway does not in fact operate continuously and that inlet to the fishway is not accessible to the fish when the water level in the dam drops below a certain height.

WBBCC seek a mandatory injunction that Burnett Water comply with the condition of approval within 6 months of a decision.

The same fish transfer device has been proposed for the Traveston Dam development, near Gympie, also in Queensland. Minster for the Environment, Heritage and the Arts, Peter Garrett, is yet to make a decision regarding Traveston Dam

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This bulletin is meant for your general information. Where possible, references are given so that readers can access original sources or find more information. Any information contained in this bulletin does not represent legal advice.

The EDO does not endorse and is not affiliated with events advertised in the Community News section.

EDO NSW BULLETIN 14 OCTOBER 2008

EDO Casework