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Current Cases
Past Cases
Current Cases
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Case Summary - First Decision [PDF 12 KB] |
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Case Summary - Appeal [PDF 23 KB] |
True Conservation Association v The Minister Administering the Threatened Species Conservation Act 1995 (Growth Centres Biocertification Case)
In these proceedings the TCA is challenging the decision by the Minister on 14 Dec 2007 to grant biodiversity certification to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The effect of biodiversity certification is that species impact statements no longer need to be carried out for individual development applications in the area covered by the Growth Centres SEPP. Biodiversity certification is a process whereby up-front planning for threatened species protection is intended to take the place of site-by-site assessments. The Minister cannot grant biodiversity certification unless she is satisfied that the SEPP will lead to the overall improvement or maintenance of biodiversity values.
The TCA believes that, in this case, biodiversity certification was granted prematurely and based on inadequate information. The plan will result in the clearing of 1,856 ha of some of the rarest vegetation communities in the State. Approximately 16 threatened plant species and 22 threatened fauna species will suffer a loss of habitat as a result of the planned development under the Growth Centres SEPP.
On 25 June 2008 the Threatened Species Conservation (Special Provisions) Bill 2008 passed through both houses of the NSW Parliament. The bill will confer biodiversity certification on the area within the Growth Centres SEPP covered by the original order. This means that the Growth Centres SEPP will have the benefit of biodiversity certification, even if the original biodiversity order is declared invalid by the Court.
The NSW Government has shown scant respect for the rule of law by introducing special legislation to avoid having to comply with the requirements of the Threatened Species Conservation Act in relation to the Growth Centres SEPP. This sets a poor precedent for other areas of the State which are also subject to development pressure.
Conservation of North Ocean Shores Inc v Byron Shire Council & Ors [2009] NSWLEC 69
CONOS (Conservation Of North Ocean Shores Inc) represented by the EDO was successful in its Land and Environment Court challenge to the development consent for the Splendour in the Grass Music Festival.
The Chief Judge of the Land and Environment Court has found that Byron Shire Council acted outside of its power when it granted consent to Splendour in the Grass to hold a music festival on high conservation value lands north of Byron Bay.
A significant part of the land the subject of the development consent is zoned for habitat protection under the Byron Shire Local Environmental Plan. The Court found that the development is properly characterised as a temporary place of assembly which is a prohibited use in the habitat zone.
The habitat zoning on the land was put in place after a detailed Commission of Inquiry in 1998 that had before it scientific evidence of the significance of the wildlife corridor on the land. The corridor is a regionally significant wildlife corridor linking coastal ecosystems to world heritage hinterland ecosystems. The development would have seen substantial earth works on the land to accommodate the music festival including a 25 metre wide tunnel excavated through the wildlife corridor requiring the removal of native vegetation and wildlife habitats.
The EDO was ably led by Mr Tomasetti Senior Counsel and Mr Eastman of Counsel. The EDO greatly appreciates their assistance in running important public interest matters.
Hastings Point Progress Association Inc v Tweed Shire Council and Aeklig P/L
Hastings Point Progress Association Inc v Tweed Shire Council and Planit Consulting P/L and ors
The EDO Northern Rivers is acting for Hastings Point Progress Association Inc in two Land and Environment Court proceedings which challenge two separate development consents granted by Tweed Shire Council which allow 3 storey developments in the coastal hamlet of Hastings Point on the Tweed Coast, contrary to the existing character of the hamlet.
Hastings Point Progress Association Inc claimed that the developments will change the existing character of the coastal hamlet. It argued that in consenting to the developments, Council breached its own local planning controls by failing to take into account the cumulative impacts that the developments will have on the site's community, locality and catchment. It further argued that the decisions of Council to consent to the 3 storey developments, given a clear previous commitment to maintain the existing two storey character of the hamlet, are manifestly unreasonable.
The cases were heard together before Justice Pain in the Land and Environment Court. Her Honour allowed one application and dismissed the other. With regards to the Planit Consulting development, the Court held that in granting consent to a multi-housing development, Council failed to take into account the cumulative impacts of the development as was required by the Tweed Local Environmental Plan and therefore the development consent was invalid.
However, with regards to the Aeklig development, the Court found that Council was not required to take into account the provision in the LEP as State Environmental Planning Policy- Seniors Living allowed the setting aside of local planning controls in the LEP that would otherwise prohibit the development.
Anderson & Anor v Director-General, Department of Environment and Climate Change & Anor
There is a long history to this matter. The EDO acted for the Andersons in an earlier case challenging the validity of a consent issued by the Director-General of the Department of Environment and Conservation, allowing the destruction of Aboriginal cultural heritage for a residential subdivision (see past cases). Subsequently, the Andersons have successfully challenged two further re-determinations to grant the consent, and also successfully challenged the grant of development consent by the Minister for Planning. In recent proceedings, the Andersons lost a further challenge to a determination by the Minister for Planning to grant development consent for the residential subdivision.
These proceedings, which were heard in April, challenged a fourth consent allowing the destruction of Aboriginal objects on the site of the proposed subdivision. The challenge was unsuccessful.
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Case Summary [PDF 13 KB] |
The Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd
The EDO assisted the Gerroa Environmental Protection Society (GEPS) in their Land and Environment Court appeal against the Planning Minister’s approval of an extension to a sand quarry at Gerroa on the NSW South Coast.
The development was approved as a major project under Part 3A of the Environmental Planning and Assessment Act 1979.
GEPS claimed that the safeguards contained in a sand mining approval did not go far enough, particularly with regards to endangered ecological communities on the site. GEPS launched a merits appeak seeking to have the approval overturned, or better conditions attached.
The hearing concluded on 10 March 2008 and the Court handed down its decision approving the development on 16 May 2008.
Although the quarry was ultimately approved, by bringing the action GEPS succeeded in pressuring the proponent to improve the development's environmental safeguards. The Court also attached additional conditions to the development consent with the result that the environmental impacts of the development have been markedly reduced.
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Case Summary [PDF 23 KB] |
Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (the CUB case)
The EDO commenced proceedings in the Land and Environment Court on behalf of Mathew Drake-Brockman. The proceedings challenged the validity of the approval for re-development of the Carlton United Brewery site for 1600 residential apartments, commercial offices and retail premises.
The case challenged the application of Part 3A of the Environmental Planning and Assessment Act 1979, which grants the Minister for Planning broad discretion to approve major projects of State significance. It was argued that the Minister failed to properly consider the principles of Ecological Sustainable Development when approving the site. Judgment was handed down on 13 August 2007 in favour of the Minister for Planning.
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Case Summary [PDF 70 KB] |
The Whales Case
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd[2005] FCA 678
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd[2005] FCA 664
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd[2004] FCA 1510
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In this long-running case, the EDO acted for the Humane Society International Inc (HSI) against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).
The proceedings were brought in the Federal Court of Australia. HSI sought a declaration that Kyodo breached the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act 1999 ) by whaling in the Australian Whale Sanctuary adjacent to Antarctica and an injunction to prevent them from continuing to kill whales there. In response, Japan claimed that it does not recognise Australia 's sovereignty over the Antarctic waters which constitute the whale sanctuary.
In a judgement handed down on 15 January 2008, His Honour Justice Allsop made a declaration that Kyodo was in breach of Australian law by whaling in the Australian Whale Sanctuary and granted HSI an injunction to restrain Kyodo from further breaches of the EPBC Act 1999.
HSI representatives travelled to Japan to serve the injunction upon Kyodo but so far no enforcement action has been taken. HSI has the option of taking enforcement action within Australia should the whaling ships enter Australian territorial waters.
You can find out more about this case and access court documents at www.hsi.org.au
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Case Summary [PDF 13 KB] |
WWF-Australia v Department of Agriculture, Fisheries and Forestry
The EDO is acting for WWF-Australia in the Administrative Appeal Tribunal against the Department of Agriculture, Fisheries and Forestry (‘DAFF') in relation to a Freedom of Information matter. WWF-Australia is appealing the decision of the Australian Bureau of Agricultural and Resource Economics (‘ABARE') to refuse access to the responses of a number of farmers to questionnaires used by ABARE to obtain information and views about land clearing in NSW. ABARE is a division of DAFF.
In May 2007, the NSW Farmers Association joined the proceedings.
After negotiations between WWF-Australia and ABARE in early 2008, ABARE provided aggregated information about the underlying survey results to WWF-Australia. WWF-Australia was satisfied with the provision of this information and therefore discontinued the application on 4 April 2008.
The Hub Action Group Inc v the Minister for Planning and Orange City Council
The EDO successfully represented The Hub Action Group, a group of local residents opposed to a proposal to develop ‘the Hub' regional waste facility on agricultural land near Molong.
The proposal was opposed primarily because it was likely to limit the ability to use the land for agricultural purposes, even after closure of the landfill. Productive agricultural land is a scarce resource which needs to be protected for future generations.
In a decision handed down on 17 March 2008, Justice Preston of the Land and Environment Court agreed that the proposal was not sustainable, partly because it was likely to adversely affect the long term use, for sustained agricultural production, of the area and the adjoining prime crop and pasture land.
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Case Summary [PDF 11 KB] |
Humane Society International Inc. v Minister for Environment and Heritage
The EDO acted for HSI in the Administrative Appeals Tribunal (AAT) appealing the Minister's declaration of the Southern and Eastern Scalefish and Shark Fishery Wildlife Trade Operation under the Environmental Protection and Biodiversity Conservation Act 1999.
The EDO has represented HSI at four mediations with the Minister and Australian Fisheries Management Authority representatives since September 2006, and succeeded in negotiating a number of significant draft additional conditions to the Wildlife Trade Operation. Final orders implementing the conditions agreed to at the mediations were made by the AAT on 21 February 2001.
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AAT Orders [PDF 193 KB] |
Nature Conservation Council Of NSW Inc. V Minister for Environment and Water Resources and Ors; Administrative Appeals Tribunal Proceedings (Grey Nurse Sharks)
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| Grey nurse shark with hook and injury at Fish Rock, South West Rocks. Photo courtesy of Peter Hitchens. |
The EDO represented the NSW Nature Conservation Council (NCC) in proceedings brought in the Administrative Appeals Tribunal (AAT) against the Commonwealth Minister for the Environment and Heritage. NCC presented evidence to the Tribunal that the NSW Ocean Trap and Line Fishery (OTLF) has a significant impact on the nationally listed critically endangered east coast population of the Grey nurse shark.
The OTLF is a multi-species targeted fishery that operates within the habitat areas of the Grey nurse shark and a number of other threatened species. The NCC is seeking the implementation of fishery closures of specific key shark aggregation areas and the banning of the use of wire traces in deeper waters.
In a judgment handed down on 18 October 2007, the AAT upheld the Minister's approval of the OTLF as a wildlife trade operation on the basis that the fishery, operated in accordance with the conditions imposed by the Minister, will not be detrimental to the survival of the Grey nurse shark.
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Case Summary [PDF 16 KB] |
Anvil Hill Project Watch Association Inc v Minister for the Environment & Water Resources & Anor [2008] FCAFC 3
Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources & Centennial Hunter Pty Ltd [2007] FCA 1480
The EDO acted for the Anvil Hill Project Watch Association Inc ('AHPWA') in Federal Court proceedings, challenging a decision of the delegate of the Federal Minister for the Environment and Water Resources, that the Anvil Hill project (a proposed large open cut coal mine in the Hunter Valley) was not a 'controlled action' under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The decision of the Minister's delegate means that the project will not have to undergo any sort of environmental assessment at the Commonwealth level because it is not, in the Commonwealth's view, likely to have a significant impact on a matter of national environmental significance. This case raises important issues about the extent to which, and the manner in which, the Commonwealth needs to consider greenhouse gas emissions arising from large mining or other industrial developments in Australia.On September 20 2007, the Federal Court dismissed the Application and AHPWA appealed to the Full Federal Court.
In the appeal it was argued that a decision by the Minister whether an action is a controlled action under s.75(1) of the EPBC Act amounts to a jurisdictional fact; and also that it was not permissible for the Minister to take into account private ecological community classification systems when considering whether an EEC is present on site.
Justice Stone had dismissed these arguments at first instance and her Honour's judgment was upheld by the Full Court.
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Case Summary [PDF 53 KB] |
Darling River Action Group Inc. v Director General (Department of Natural Resources)
On 14 September 2007, the Director General of the Department of Natural Resources (QLD) revoked the decision to auction 8000ML of unallocated water from the Warrego catchment.
As a result, the Darling River Action Group Inc, represented by the EDO, has withdrawn its case in the Supreme Court of Queensland challenging the auction.
The Broken Hill based group were challenging the auction on the basis that they would be adversely affected by the auction and that they had not had an opportunity to be heard regarding the decision. The auctioning of 8000ML of water - the equivalent of 4000 Olympic swimming pools - would have had significant adverse impacts for the already severely stressed Darling River, which has dried up along much of its length due to overextraction upstream.
Pindimar Bundabah Community Association Inc v Great Lakes Council & Ors (LEC Proceedings 10679/2006)
The EDO represented the Pindimar Bundbnah Community Association (PBCA) in proceedings brought in the Land and Environment Court against Great Lakes Council, Port Stephens Council and a developer. PBCA challenged Great Lakes Council's decision to allow New South Wales' first land-based abalone farm to be developed on the edge of Port Stephens estuary on the Mid-North Coast. PBCA, a local community group, has been fighting the controversial development proposal for nearly six years.
The PBCA argued that the proposed abalone farm should be refused on the basis that it would impact on the wild abalone populations and seagrasses and would affect water quality and other aquatic ecological communities. It also argued that the proposal was inconsistent with the Port Stephens Local Environmental Plan and State Environmental Planning Policy No. 62. In addition to expert evidence, the PBCA relied on the principles of ecologically sustainable development, including the precautionary principle, to support its arguments.
A marine ecologist engaged by the EDO stated that construction and maintenance of the pipes to service the farm would cause significant damage to seagrass beds along the pipeline routes and discharge nutrient enriched water into the estuary which could have adversely affected the fragile ecosystem. These impacts directly conflicted with the Department of Primary Industries' Fish Habitat Protection Plan No. 2: Seagrasses which applies to all coastal and estuarine waters of NSW. The Plan aims “to ensure there is no net loss of seagrasses within the coastal and estuarine waters of NSW”.
According abalone management and disease experts engaged by the EDO, the development could also have affected wild populations of abalone in Port Stephens. Wild abalone populations in the Port Stephens area are already seriously affected by over-fishing, including illegal fishing, and the parasite Perkinsus. The spread of disease within wild populations is a serious concern, likely to be exacerbated by the development.
The case was heard by Chief Justice Preston and Commissioner Adam on 20-22 March 2007. In a preliminary hearing, Chief Justice Preston held that the proposal was not prohibited by the site location requirements of SEPP 62. However, during the hearing of the case, it became clear from the developer's responses to questions posed by Chief Justice Preston that there were a significant number of uncertainties about the way in which the development would occur, including its ability to remove nutrients before discharging water into the estuary. The developer was also unable to produce accurate plans in relation to various aspects of the development. Accordingly, the respondents agreed to the making of consent orders allowing the PBCA's appeal.
Bungendore Residents Action Group Inc. v Palerang Council & Navaroo Constructions Pty Ltd (No 4) [2007] NSWLEC 536
In 2005 – 2007 the EDO successfully acted for Bungendore Residents' Group Inc. to challenge Palerang Council's decision to allow alternative 47 or 44 lot subdivisions on an area of land at Bungendore, near Braidwood in the NSW Southern Highlands. The group were concerned the subdivision would be out of character with the surrounding area, being a medium density housing development in a rural location; would impact stressed town drinking water supplies; and that the Council had only approved the subdivision for fear of expensive litigation by the developer in the Land & Environment Court if they refused (these last two concerns were not raised in the case). On 15 May 2007 Justice Pain handed down judgment that the Council had failed to have regard to certain detailed analyses, and whether each allotment had a practical building precinct, as required under the Local Environmental Plan; and that, as designated development, the development applications should have been subject to an environmental impact statement (which they were not). On 24 August 2007 the court further decided that it should exercise its discretion to overturn the consents, and then on 30 October 2007 ordered the Respondents to share payment of the Applicant's costs. The judgments are available here:
Watt v Forests NSW [2007] NSWADT 197
The EDO represented Gerry Watt in a Freedom of Information matter before the NSW Administrative Decisions Tribunal. Mr Watt sought from Forests NSW the separate royalty rates for pulp logs in the Southern and Eden Regional Forest Agreement regions for 2003-2004.
Forests NSW initially refused access to the information based on 3 exemptions under the Freedom of Information Act:
- The information was commercial in nature;
- The information concerned the business, professional, commercial or financial affairs of a company, where the release of the information could be reasonably expected to have an unreasonable adverse effect on those affairs or prejudice the future supply of the information to the agency or the Government; and
- The release of the information would found an action for breach of confidence.
The Tribunal rejected all of the above clauses as reasons for exemption, and determined to release the documents.
In arriving at a decision, Tribunal Member Stephen Montgomery said:
In my view, the potential socio-economic impact that would flow from release of the royalty rate is a highly relevant factor. If Forests NSW were correct in its assessment of the potential impact, very strong grounds would need to be found to justify the disclosure of the royalty rate. In my view, the factors favouring disclosure are sufficiently strong to justify disclosure. These factors all favour the opportunity for debate on an issue of significant public interest - the socioeconomic and ecological value of these publicly owned forests and whether the existing operations provide an adequate return to the community from the use of a public resource. An uninformed public cannot usefully participate in that debate.
Tugun Cobaki Alliance Inc. v Minister for Planning and Roads and Traffic Authority; Land and Environment Court Proceedings No. 40227 of 2006
Some of the animals that will be impacted by the proposed
Tugun bypass in northern NSW.
On 22 March 2006 the EDO commenced proceedings in the Land and Environment Court on behalf of a community group, the Tugun Cobaki Alliance Inc. The proceedings challenged the decision by the Minister for Planning to approve the construction of the Tugun Bypass between Currumbin and Tweed Heads as a major project under Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act).
In this case, the Tugun Cobaki Alliance argued that the approval was invalid on a number of grounds, including a failure by the Minister to properly consider certain environmental impact statement (EIS) and species impact statement (SIS) documents, as required under Part 3A.
This case was one of the first challenges to an approval made under Part 3A of the EP&A Act. The appeal dealt with a number of issues relating to the interpretation of Part 3A and the transitional regulations relating to major activities. However, one of the most important issues in the case related to the question of what material the Minister was required to consider before approving the project.
In a judgment delivered on 14 July 2006, Jagot J dismissed the appeal.
Jagot J found that, whilst the Minister was to be ‘given' copies of the EIS and SIS, there was no obligation upon him to read those documents personally (which in this instance he did not do). Jagot J referred to the intent of Part 3A being to ensure that infrastructure projects of significance to the State and major projects could be delivered quickly and efficiently.
This judgment reinforces concerns about the wide discretion given to the Minister by Part 3A.
Humane Society International and Minister for the Environment and Heritage [2006] AATA 298; 3/4/2006 (Southern Bluefin Tuna Case)
 Southern bluefin tuna. Photo courtesy Greenpeace |
Deputy President H Olney, Senior Member J Kelly, Mr IR Way, Member
The EDO represented The Humane Society International Inc (HSI) in the Administrative Appeals Tribunal in a case challenging a decision of the Minister for Environment and Heriatage.
HSI sought merits review of the decision to declare fishing operations in the Southern Bluefin Tuna (SBT) Fishery to be an approved wildlife trade operation (WTO) pursuant to s 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The SBT is a highly endangered species, whose numbers have been severely depleted due to overfishing. The approval of the Minister will see fishing and export levels remain unchanged.
HSI challenged the Minister's decision on the basis that certain preconditions, including that the operation of the fishery would not be detrimental to the survival or conservation status of the SBT, could not be satisfied.
One of the central bases of HSI's challenge was that the Minister did not provide for quota reductions as a condition of approval. This is despite recent advice from the international Commission for the Conservation of Southern Bluefin Tuna that the overall catch for the SBT should immediately be reduced by 30% in 2006 or by 50% in 2007.
Southern bluefin tuna is considered severely overfished and the Minister's Threatened Species Scientific Committee has advised him that it meets the criteria for protection as an endangered species.
The Tribunal found that the approval of the SBT fishery would not be detrimental to the survival and conservation of the species and upheld the decision of the Minister to approve the SBT fishery as a WTO.
Whilst HSI was bitterly disappointed about the decision, it decided not to appeal and to pursue the campaign to protect this species through other means.
Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors [2006] NSWLEC 12.
The EDO represented Douglas and Susan Anderson, traditional owners of land at Angels Beach, East Ballina, challenging the validity of a consent issued by the Director-General of the Department of Environment and Conservation, allowing the destruction of Aboriginal cultural heritage for a residential subdivision.
Justice Pain of the Land and Environment Court ruled that the consent was invalid, due to a failure to take into account certain relevant matters. In particular, she found that the decision to grant the consent failed to take into account a supplementary report in relation to the heritage significance of the subdivision site.
Justice Pain also found that the Director-General has failed to adequately apply the principles of ecologically sustainable development, as required by section 2A(2) of the National Parks and Wildlife Act. In particular, Justice Pain addressed the failure of the Director-General to adequately consider the principle of intergenerational equity.
Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2006] NSWCA 339 (5 December 2006)
Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2006] NSWLEC 159 (4 April 2006)
Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2005] NSWLEC 674 (9 December 2005)
The case concerned approval of a 28-lot rural residential subdivision in Cowindra. No Statement of Environmental Effects (SEE) had ever been lodged for the proposal contrary to the requirements of The Environmental Planning and Assessment Regulation 1979. There was no dispute that the Act had been breached. The question was, did this make the consent invalid?
At first instance, Bignold J of the Land and Environment court held that failure to lodge an SEE was not a breach which lead to invalidity. CRRAG, represented by the EDO, appealed to the Court of Appeal. In the Court of appeal, the Minister was joined as second appellant, and supported CRRAG in arguing that the consent should be declared invalid on the grounds of failure to submit an SEE.
The Court of Appeal unanimously upheld the decision of the Land and Environment Court, finding that the consent was valid. Tobias JA found that a reading of the Act and the Regulations did not demonstrate a legislative intention that breach of the requirement for an SEE should lead to invalidity of the consent. The principal factors which his Honour relied upon were:
The Court noted that irrespective of whether an SEE was lodged, the Council had an obligation to properly consider the impacts of the proposal under s 79C of the Act.
This decision allows Councils to effectively decide whether or not they will insist on an SEE being submitted. This is of concern, and tends to overlook the fact that development application procedures are designed to keep Councils, as well as developers, accountable. SEEs may vary in quality, but they are the only form of assessment carried out for the vast majority of development proposals in this state. If no SEE is lodged or exhibited, it makes it much more difficult for members of the community to make informed submissions in relation to the proposal.
Elephants Case
The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage and Ors [2006] AATA 94 (6 February 2006)
The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage and Ors [2005] AATA 1210 (7 December 2005)
 Photo courtesy Nicola Beynon, HSI |
On 20 July 2005 the EDO filed proceedings in the Administrative Appeals Tribunal on behalf of the International Fund for Animal Welfare (Australia) Pty Ltd, the Humane Society International Inc and the RSPCA Australia seeking review of a decision made by the Commonwealth Environment Minister to allow the import of eight Asian elephants from Thailand to Taronga and Melbourne Zoos. The basis of the appeal is that the Minister's decision does not meet the animal welfare and conservation requirements of the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The Asian elephant species is listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as critically endangered, accordingly, permits to import the species can only be granted for certain specific, non-commercial purposes. The Zoos claimed that their non-commercial purpose is conservation breeding and they also applied to the Minister for approval of their breeding program. That approval was granted.
On 6 February 2006, the Administrative Appeals Tribunal handed down its decision. The Tribunal decided that permits to import Asian elephants should be granted to the zoos subject to a far more stringent set of conditions than those originally imposed by the Environment Minister. These conditions – which primarily relate to welfare - will go a long way towards providing a much more comfortable environment for these elephants, who will spend up to 60-70 years in urban zoos.
Kennedy v Director-General and Stocklands
This matter related to a decision to allow the destruction of objects with cultural heritage significance at Sandon Point. It raised issues relating to the failure of the local council to take into account relevant matters when assessing the application to destroy cultural heritage, particularly the fact that the council, in reaching its decision, relied on archaeological reports that were prepared in relation to previous applications and did not undertake fresh consultation with the Aboriginal community on the issue. Due to a review of prospects of success after the finding in the Williams case (below), the EDO ceased to act in this matter.
Country Energy v Williams; Williams v Director-General National Parks and Wildlife [2005] NSWCA 318
The EDO acted for Mr Williams, an Aboriginal elder, in proceedings in the NSW Court of Appeal. The proceedings were commenced by Country Energy in response to a finding by Justice Lloyd in the Land and Environment Court of NSW that Mr Williams had been denied procedural fairness in relation to cultural heritage surveys along the electricity transmission line route for the Lake Cowal gold mine.
The EDO also represented Mr Williams in related proceedings in which Mr Williams challenged a decision of Justice Bignold in the Land and Environment Court of NSW to uphold the grant of a permit to destroy Aboriginal cultural heritage during the construction of the transmission line.
The appeal against the decision of Justice Lloyd was upheld while the appeal against the decision of Justice Bignold was dismissed.
The second case in particular raised important questions in relation to the power of the State Government to suthorise the destruction of Aboriginal cultural heritage for land development purposes. Although the court ultimately found that such destruction was permissible in the circumstances, it did make some very strong findings critisising the conduct of the National Parks and Wildlife Service in assessing the application to destroy cultural heritage.
Project Venture Management v Warringah Council 11361 of 2005
The EDO acted for Duffys Forest Resident's Association in proceedings relating to a subdivision on land that had a very high bush fire hazard and threatened species habitat value. The EDO applied to the Land and Environment Court to be heard as intervenors when the Council did not pursue the bush fire hazard issue in merit proceedings with the developer.
Evans v Maclean Shire Council and Anor [2004] NSWLEC 512
Evans v Maclean Shire Council and Integrated Site Design Pty Ltd (for Primrose Levi Pty Ltd) [2005] NSWLEC 67
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The EDO represented Mr and Mrs Evans, who were objectors to a development application for the expansion of a caravan park and the construction of an on-site sewerage treatment system on Palmers Island on the north coast of NSW.
Maclean Shire Council granted consent to the DA. The basis of the Evans' challenge to the Council's decision was that the Council had no power to grant consent to the development because, pursuant to State Environmental Planning Policy No. 71 - Coastal Protection (SEPP 71), the development was State significant and could only be determined by the Minister.
Justice Bignold found that the DA was properly characterised as State significant development within the meaning of SEPP 71 and that the Minister, not the Council, was the appropriate consent authority. Accordingly, the Council had no power to determine the DA and the consent is therefore void.
The decision strengthens the operation of SEPP 71 and clarifies the meaning of State significant development
Friends of South West Rocks Inc. v Machro Pty Limited and Ors [2004] NSWLEC 721
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On 21 December 2004 Justice Pain of the Land and Environment Court ruled in favour of the community group, Friends of South West Rocks Inc (FOSWR), represented by the EDO, when she found that Kempsey Shire Council had acted outside of its powers in granting consent to three development applications for a total of 82 housing lots on 8.5 hectares of native forest in South West Rocks on the north coast of NSW.
Justice Pain found that in granting consent to the DAs, the Council had breached the provisions of State Environmental Planning Policy No. 71 (SEPP 71) and had no power to grant consent to the DAs because the Minister was the proper consent authority for one of the DAs and the Council could not grant consent to the DAs in the absence of a master plan for the land. Accordingly, the Court found that the consents are void and of no effect.
FOSWR also challenged the grant of concurrence by the Director-General of National Parks and Wildlife, to the DAs lodged by Machro and Eric Norman in respect of impacts of the development proposals on threatened fauna species on the land, in particular, Phascogales and Squirrel Gliders. Justice Pain found that it was not strictly necessary to determine the validity of the concurrence given that she found that the consents were invalid. Her Honour considered the parties' arguments in relation to this ground of review and stated that ‘in the absence of an express power in the NPW Act or the EP&A Act enabling the imposition of a requirement for the payment of money for compensatory habitat, such a requirement is beyond power’. However, Justice Pain concluded that she was not in a position to finally determine FOSWR's arguments in relation to the concurrence.
On 30 November 2004 assent was given to the Threatened Species Legislation Amendment Act 2004. Section 126N, which is contained within Schedule 1 of the amendment Act, provides the Director General with specific statutory powers to grant concurrence conditional on voluntary conservation action. Subsection (2)(d) provides that voluntary conservation action may include the contribution of money for the reservation of land or to secure the protection of land for conservation purposes or to restore threatened species habitat on land.
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Blue Mountains Conservation Society Inc v Director-General National Parks and Wildlife; the Minister for the Environment and AFG Talons Pty Ltd (2004) NSWLEC 196
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The EDO successfully represented the Blue Mountains Conservation Society Inc in its attempts to prevent filming of a war movie in the Grose Wilderness area of the Blue Mountains National Park in May 2004.
Justice Lloyd ruled that the proposed commercial filming of scenes for the war movie “Stealth” in the area was unlawful, in a significant statement on the value of wilderness areas and the protection that should be afforded to them.
The Society claimed that the authority and consent for the commercial filming activities were in breach of the National Parks and Wildlife Act 1974 and the Wilderness Act 1987. Justice Lloyd accepted the Society’s arguments that the proposed commercial filming in a wilderness area was completely antipathetic to the intended use of the land.
His Honour concluded his judgement with the words, “wilderness is sacrosanct”.
Nature Conservation Council of NSW Inc v the Minister for Sustainable Natural Resources [2004] NSWLEC 33
Nature Conservation Council of NSE Inc v the Minister Administering the Water Management Act 2000 [2005] NSWCA 9
Nature Conservation Council of NSW v Minister Administering Water Management Act [2005] HCATrans 668 (2 September 2005)
Nature Conservation Council of NSW v Minister Administering Water Management Act [2005] HCATrans 1004 (14 December 2005)
In 2003/04 the EDO represented the NSW Conservation Council in a case that argued that the water-sharing plan for the Gwydir Regulated River Water Source is invalid, because it fails to address environmental necessities. The Nature Conservation Council argued that the plan had failed to specify performance indicators or establish environmental water rules in respect to both environmental health water and supplementary environmental water. However on 6 February 2004 Justice Talbot of the Land and Environment Court dismissed the appeal, finding the plan was validly made.
The EDO was granted special leave to appeal to the High Court late 2005. Unfortunately, the NSW government passed legislation to retrospectively validate all water sharing plans made under the Water Management Act 2000, including plans that may have been invalidly made. As a result, the Nature Conservation Council (NCC) was forced to abandon its High Court challenge to the Gwydir Water Sharing Plan.
Wilderness Society v Minister for Planning & Australian Silicon Operations (“Mogo”) (Unreported 0202 of 2002, Lloyd J)
In 2002, the EDO acted for The Wilderness Society appealing against a consent for the development of a charcoal smelter at Mogo on the south coast. The appeal was on the basis that the development should not go ahead as the environmental impact assessment for the project did not take into account the impact of taking the wood that was to used to make the charcoal. Before the matter went to hearing, Australian Silicon announced that it did not intend to defend their consent and the matter was finalised. As a result, the charcoal smelter will not go ahead at Mogo.
As this case settled, there is no reported judgment in the matter.
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Bruce Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors [2001] NSWLEC 28 (4 May 2001)
Represented by the EDO, Bruce Wilson on behalf of the Gurrungar Environment Group appealed against a consent for a cotton farm at “Beemery” 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.
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Coalcliff Community Association v Minister and Kembla Coal and Coke [1999] NSWCA 317 (31 August 1999)
Coalcliff community Association v Minister for Urban Affairs and Planning No. 40047 of 1996 [1997] NSWLEC 94 (17 July 1997)
The EDO acted for the Association to stop the dumping of coal waste and seek remediation on a site on the Illawarra Escarpment. The initial court proceedings found that the dumping of coal waste by Kembla Coal & Coke had not complied with the conditions under a development consent granted in 1983, which had since lapsed, and was therefore illegal.
In further proceedings, the parties reached an agreement that provided for the remediation of the site by the new owner.
Al Oshlack v Iron Gates Pty Ltd and Richmond River Shire Council [1997] NSWLEC 89 (4 July 1997)
Al Oshlack v Iron Gates Pty Ltd [1996] NSWLEC 186 (11 July 1996)
In 1997, the EDO acted for Al Oshlack to stop clearing for a subdivision on the controversial Iron Gates site at Evans Head. The site is bordered on three sides by national park and contained rare coastal rainforest, a wetland and an abundance of wildlife, including threatened species. The breaches of the development consent were found to be so serious that the consent was rendered null and void. In a landmark judgement, the Court ordered a full restoration of the site upon which substantial works had been done.
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Timbarra Protection Coalition Inc V Ross Mining NL & Ors [1999] NSWCA 8 (9 February 1999)
Timbarra Protection Coalition Inc v Ross Mining NL [1998] NSWLEC 19 (23 February 1998)
The Coalition, represented by the EDO, challenged the failure of a mining company, Timbarra Gold Mine, to undertake a Species Impact Statement for extensions to its mine in Malara State Forest.
The case went to the Court of Appeal. The decision highlighted the legal requirement of an objective scientific assessment as part of the development assessment process and the obligations of decision-makers to fully consider the likely impacts of development on threatened species, rather than relying only on information supplied by developers.
This has significant implications for the protection of threatened species and the environment generally in NSW.
Jarasius v The Forestry Commission of New South Wales [1989] NSWLEC 149 (19 December 1989)
Jarasius v Forestry Commission of New South Wales & Ors [1988] NSWLEC 11 (4 March 1988)
In the late 1980s, the EDO acted for Wendy Jarasius, a local resident, challenging the Forestry Commission over the logging of old-growth eucalypt forests in the southern-eastern forests near Eden, described as “the main environmental dispute in NSW in the late 1980s”. Although logging was ultimately allowed, the legal ramifications from the case were vitally significant for conservation in NSW, spurring victories in the north and winning concessions from the Government over forests and the assessment of their impacts.
Alexander Jonathan Brown v. Environmental Protection Authority [1992] NSWLEC 101 (12 November 1992)
Alexander Jonathan Brown v. Environmental Protection Authority [1992] NSWLEC 103 (12 November 1992)
The EDO represented Mr AJ Brown in proceedings against the EPA and North Broken Hill Limited. The proceedings challenged the EPA policy of “prosecutable reality” (where pollution licence levels were raised to accommodate existing levels of pollution) and also sought a declaration that a licence to use the river for waste disposal should be accompanied by an Environmental Impact Statement. Importantly, the case also tested the right to bring proceedings in pollution matters. Following on from this, the Government passed laws exempting the EPA from the need to undertake environmental assessment when reviewing licences to pollute.
Greeenpeace Australia Limited v. Redbank Power Company Pty Limited [1994] NSWLEC 178 (10 November 1994)
The EDO acted for Greenpeace challenging the approval of a power station in the Hunter Valley. Despite the claims of the company, it was argued that the power station would result in a net increase of carbon dioxide emissions. The approval was further challenged on the bases that that there was no demand for the new power station and that it contradicted both Australian and international policies to reduce greenhouse gas emissions. The Court held that at present the law did not restrict the building of new power stations and the appeal was dismissed.
North Coast Environment Council v National Parks and Wildlife Service [1999] NSWLEC 1
In 1998, EDO acted for the North Coast Environment Council challenging a licence issued by NPWS to relocate a flying fox colony near a school. The colony contained the threatened black flying fox and it was argued that the conditions necessary to issue a licence to harm for threatened species had not been met. The NCEC were successful in obtaining an interim injunction to prevent the removal of the colony but had to withdraw before the final hearing due to an unsuccessful application for legal aid. The injunction was subsequently lifted.
Friends of Hinchinbrook v Minister and Cardwell Properties Pty Ltd [1996] 942 FCA 1 (1 November 1996); (1997) 93 LGERA 249; (1997) 95 LGERA 229; (1998) 99 LGERA 140
The EDO acted for Friends of Hinchinbrook Society Inc challenging the grant of a consent under the World Heritage Properties Conservation Act to allow the dredging of the Hinchinbrook Channel and removal of mangroves for a resort village adjacent to a World Heritage site. During the hearing, Cardwell properties made an unsuccessful application for security for costs. The application was dismissed because the judge was convinced that legitimate associations concerned with world heritage properties should be able to raise issues before the Federal Court. This recognised the importance of enabling court cases that seek to enforce the law in the public interest.
