- Barrington-Gloucester-Stroud Preservation Alliance Incorporated v Planning Assessment Commission and AGL Upstream Infrastructure Investments Pty Limited
The EDO, on behalf of Barrington-Gloucester-Stroud Preservation Alliance Inc, has commenced judicial review proceedings against two decisions of the Planning Assessment Commission (PAC) to approve a concept plan and stage one of the Gloucester Gas Project.
The concept plan involves extraction of coal seam gas within a 210km area between Barrington and Great Lakes, transporting the gas from the processing facility to the existing gas supply network via a 95-100 km pipeline traversing several LG areas, a gas delivery station at Hexham. The stage one project approval is for 110 gas wells and gas and water pipelines between Gloucester and Stratford, a central processing facility, gas transmission pipeline 95-100 km in length and the Hexham gas delivery station. Our client is concerned about the risks of surface and groundwater contamination as a result of the fracking process used to extract the gas from the coal seam, and the lack of data about groundwater impacts in the context of the geological receiving environment, which contains numerous cracks and fissures in the coals seams.
The grounds of appeal contend that certain the conditions of approval, relating to the groundwater and waste water disposal/reuse, leave open the possibility of a significantly different development with significantly different impacts from that approved. The grounds also contend a failure to consider the precautionary principle in the context of scientific uncertainty and lack of information on the threat of environmental damage.
The hearing of this case took place on 17, 19 and 20 October 2011 before Justice Pepper in the Land and Environment Court. The proceedings concern a challenge against two decisions of the Minister for Planning to approve coal seam gas extraction within a 210km area between Barrington and Great Lakes. The key issue raised by the applicant in the hearing is that the Minister failed to properly apply the precautionary principle in approving the development on the basis of only preliminary groundwater investigations, and in delegating certain decisions about groundwater to the Director-General at a future time when more studies have been completed. The court has reserved its decision which may take some months to be handed down.
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- Blue
Mountains Conservation Society v Delta Electricity
On behalf of the Blue Mountains Conservation Society (BMCS) the EDO
has commenced civil enforcement proceedings in the NSW Land and
Environment Court against Delta Electricity under the Protection
of the Environment Operations Act 1997, for causing water pollution.
Water quality testing results from upstream and downstream of
a discharge point from Wallerawang Power Station, as well as from
the discharge point itself indicate that the power station is introducing
salts and metals into a river which runs into Sydney's drinking water
supply. The enforcement authorities have been advised of the results
but have so far not done anything about it.
On 9 September the EDO successfully obtained a 'protective costs
order' (PCO) in the amount of $20 000. The PCO caps the costs payable
on a party/party basis in the proceedings. The client could not
afford to continue with the proceedings unless its liability was limited.
Under the Uniform Civil Procedure Rules the court has the discretion
to limit the costs payable on a party/party basis at any stage
in the proceedings. Justice Pain of the Land and Environment
Court made
the order on the basis that the case was brought in the public
interest, was likely to raise novel questions of law and that the
applicant could not continue unless an order capping costs was made.
Justice Pain also ordered BMCS to provide security for Delta's costs
in the amount of $20,000.
Delta appealed the orders of Justice Pain in the NSW Court of Appeal,
on the grounds (in summary) that:
- Justice Pain erred by failing to give adequate consideration
to the rule that costs are ordinarily awarded against an unsuccessful
party and are compensatory in nature, and that the underlying
purpose of rule 42.4 is to ensure the proportionality of costs
to the complexity of proceedings; and
- It was not reasonably possible to categorise proceedings as public
interest litigation at the outset.
The Appeal was heard on 16 March 2010 and the Court of Appeal (comprising
Beazley JA Basten JA Macfarlan JA) handed down its judgment
on 18 October 2010.
Basten JA and Macfarlan JA dismissed the appeal against the PCO,
and ordered Delta to pay BMCS's costs of the appeal. Of particular
importance for public interest advocates, their Honours held that:
- Litigation may be characterised as being in the public interest
despite it being early in the proceedings.
- The public interest nature is directly relevant to the propriety
of a maximum costs order and if the proceedings are in the public
interest, the Land and Environment Court Rules 2007, rule
4.2 would operate to qualify the Appellant's expectation that it
would recover its costs if successful.
- The principle of open standing for civil enforcement to prevent
a breach or threatened breach of environmental laws will be seriously
undermined if some protection against large costs bills is not available.
The Court was unanimous in refusing to grant leave for Delta to appeal
the security for costs matter, as the maximum costs that could
be recovered under the PCO was $20,000.
Consequently, BMCS can now pursue its case in the Land and Environment
Court. If they are unsuccessful, the maximum amount that may be
recovered by Delta stands at $20,000.
On 22 November 2010, Delta sought orders that whole, or parts of, BMCS’ case be struck out pursuant to rules 13.4(1) or 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that either BMCS’ claim did not disclose a reasonable cause of action; or it was not within the Court’s jurisdiction to determine it. In particular, Delta alleged that a breach of s 120 of the POEO Act (under which it is an offence to pollute waters) was not one which could be remedied under s 252 (which empowers any person to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the POEO Act and regulations).
Delta’s arguments were rejected by the Court. In particular, the Court held that Delta’s submissions constituted neither a proper textual analysis of sections 252 and 120, nor or a purposive construction of the Act. Her Honour Justice Pepper also found that stopping the continuing discharge of the pollutants would be a practical remedy that could be imposed in respect of the past breaches. The Court awarded costs in favour of BMCS.
Following judgment on Delta’s strike-out motion, the parties agreed to try to resolve the issues through voluntary mediation. On 11 October 2011, the BMCS agreed to discontinue the proceedings on the following grounds:
- Delta admits that it has discharged waste waters containing the pollutants between May 2007 and August 2011, and that it has polluted waters within the meaning of section 120 of the POEO Act, without authorisation under its licence, except in relation to salt; and
- Delta submits an application to the Office of Environment and Heritage (OEH) by 25 October 2011 to vary its licence to specify maximum concentration levels for copper, zinc, aluminium, boron, fluoride, arsenic, salt and nickel; and
- Delta submits an application to the OEH by 25 October 2011 to include a condition in its licence requiring the implementation of a program of works for the full treatment of cooling tower blow down water from Wallerawang power station pursuant to a pollution reduction program.
Delta has agreed that it will do the works necessary to stop the pollution, and that in the interim, it will apply for limits to be set on those pollutants. What those limits will be is a matter to be determined by the OEH, and should include input from the community. The admission from Delta is important in this case because it is an acknowledgment that unless there is express authorisation under an environment protection licence to discharge pollutants, any such discharge is unlawful, even where the company is required to monitor the discharge of those pollutants. This has implications for many other licences in NSW that may have similar conditions.
The EDO is grateful to barrister Tom Howard who appeared on behalf of BMCS throughout the various proceedings, and for his ongoing assistance in this matter.
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- Briggs-Smith v Moree Plains Shire Council – Federal Magistrates Court
The EDO has filed an application in the Federal Magistrates Court on behalf of Aunty Noeline Briggs-Smith seeking to protect the Dhiiyaan Indigenous Centre which was an Aboriginal keeping place in Moree. The Keeping Place was a collection of Aboriginal library resources, geneaologies, and artefacts that took 16 years to accumulate. The Dhiyaan Indigenous Centre played an essential role in the in the maintenance and preservation of Aboriginal culture and heritage for Aboriginal people with a connection to Moree until its closure and subsequent redistribution of the majority of the collection to regional libraries. The Applicant is seeking orders for the Moree Plains Shire Council to disclose the location of the items in the Collection and restore the Keeping Place for the benefit of the Aboriginal community.
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- Catherine Hill Bay Progress Association and Dune Care Inc v Minister for Planning & Anor
On the 12 August, the EDO, on behalf of Catherine Hill Bay Progress Association and Dune Care Inc, commenced judicial review proceedings in the Land and Environment Court. The applicants sought to challenge a major project approval for a staged residential subdivision to create up to 600 residential lots, bulk earthworks, and infrastructure at Catherine Hill Bay.
The applicant raised the potential for the matter to be referred to mediation with the respondents. On the 19 October the parties engaged in a 9 hour mediation session. Consequently, an agreement acceptable to all parties was reached and the matter was discontinued in the Land and Environment Court.
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- Coastwatchers Association Inc & South East Region Conservation Alliance (SERCA) v Minister for Planning & Anor
The EDO, on behalf of Coastwatchers Association and SERCA, commenced a merits appeal in the Land and Environment Court with respect to a decision of the Planning Assessment Commission (as delegate of the Minister for Planning) to approve a gold mine and associated infrastructure and works, known as ‘Dargues Reef Gold Project’. On 21 October the Court ordered that this matter be listed and heard together with a merits appeal contesting the same gold mine project but commenced by Eurobodalla Shire Council. The proceedings have been expedited and the matter is listed for a ten day hearing commencing on 1 February 2012.
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- Hunter Community Environment Centre Inc v Minister for Planning and Delta Electricity
The NSW Minister for Planning has granted project approval to Delta
Electricity for the rehabilitation of the Munmorah Power Station. The
project has been declared a 'critical infrastructure' project under
the Environmental Planning and Assessment Act 1979 (the EP&A
Act).
If the rehabilitated power station is powered entirely
by coal, it will generate approximately 4.2 million
tonnes of greenhouse gases per year. Further,
an independent review of the greenhouse gas assessment for the
project by Arup has found that the project is significantly below
best practice for thermal efficiency when compared to either current
coal fired or gas fired generation technology.
The EDO is acting for Hunter Community Environment Centre
Inc (HCEC)
in challenging the Minister for Planning's approval in proceedings
in the Land and Environment Court. HCEC seeks:
a declaration that there was no valid critical infrastructure
declaration within the meaning of section 75T of
the EP&A Act in respect of the project; a declaration
that the project approval is invalid and of no effect; an order
quashing the project approval; and, an injunction
restraining Delta Electricity from taking any action
in reliance on the project approval.
The proceedings involve a challenge to the operation
of a privative clause in the EP&A Act. Section
75T purports to prevent judicial review of breaches
of the EP&A Act in respect of critical infrastructure
projects, by requiring the Minister's approval to commence proceedings.
HCEC sought approval from the Minister to commence these proceedings
on 3 November 2010, however, the Minister has not responded to
date. HCEC
will rely on the recent High Court decision of Kirk v Industrial
Relations Commission [2010] HCA 1, to support its
argument that section 75T of the EP&A Act cannot
shield decisions affected by jurisdictional error
from review by the Land and Environment Court. This
issue was also argued in Haughton v Minister
for Planning and Macquarie Generation and Haughton
v Minister for Planning and Delta Electricity (see below).
A decision in the Haughton cases is pending.
This case is the latest of a suite of climate change
cases seeking to require decision makers to properly
consider the impacts of coal-fired power generation
on global greenhouse gas emissions and the implications
of climate change for NSW and Australia. As
in the Haughton cases,
HCEC will be challenging the validity of the project approval on
the ground that the Minister failed to consider the
principles of ecologically sustainable development,
particularly the precautionary principle and the
principle of intergenerational equity, as he was
required to do as part of his duty to consider the
public interest. HCEC
will also rely on other key grounds raised in the Haughton cases,
plus some significant new grounds relating to the
Director - General's and the Minister's obligations
under the EP&A Act.
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- Hunter Environment Lobby Inc v Minister for
Planning and Ulan Coal Mines Ltd
On behalf of the Hunter Environment Lobby, the EDO commenced proceedings challenging the Minister for Planning's approval of certain coal mining activities proposed by Ulan Coal Mines Ltd at the Ulan Coal Mine, located 40 kilometres north of Mudgee.
The approvals being challenged allow for the consolidation of Ulan's 24 existing development consents into a single planning approval, expansion of its existing underground longwall mining operations and new open cut mining operation. These approvals will see a doubling of Ulan's existing approved production rate to up to 20 million tonnes of coal per year and consequential environmental impacts on groundwater, biodiversity and greenhouse gas emissions.
A three week hearing took place during June 2011 and judgment was handed down on 24 November 2011. The Court granted approval subject to conditions, some of which are yet to be finalised by the parties. However, the Court has indicated that the mine will be required to offset its scope 1 emissions. Scope 1 emissions are direct emissions and include the burning of fossil fuels.
The EDO thanks Philip Clay of counsel, who appeared on behalf of Hunter Environment Lobby Inc, for his hard work and excellent advocacy in this matter.
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Judgment
(links to Land & Environment Court website) |
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- Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378
Judgment in this case was handed down on Thursday 8 December 2011.
Huntlee Pty Ltd and the Minister for Planning and Infrastructure appealed to the NSW Court of Appeal against an earlier decision of the Land and Environment Court.
The EDO acted for the Sweetwater Action Group Inc (SWAG) in both the Land and Environment Court and the Court of Appeal proceedings.
SWAG challenged a decision of the Minister for Planning which would enable the rezoning of land in the Hunter Valley to allow for the development of the Huntlee Town Centre for 20,000 residents. The area contains one of the last remaining habitats of the Persoonia pauciflora , a critically endangered native shrub, and is also highly contaminated.
The grounds of the challenge focused on whether the Minister considered the requirements of State Environmental Planning Policy No. 55 (for remediation of contaminated land), and the enforceability of a Voluntary Planning Agreement proposed for the site which is designed to protect the habitat of the Persoonia and provide for additional conservation areas.
The Land and Environment Court found in favour of SWAG, declaring that the decision of the Minister to recommend the making of an Amending SEPP to give effect to the rezoning was void, and that therefore the Amending SEPP was also void.
On appeal, that decision was overturned. The Court of Appeal found that the Minister's decision to recommend the SEPP was the exercise of an executive power and therefore cannot be challenged in judicial review proceedings.
To view the judgment, please click
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- Ironstone
Community Action Group Inc v Minister for Planning & Duralie Coal
Pty Ltd
The EDO is acting for the Ironstone Community Action Group (ICAG) which has commenced proceedings in the Land and Environment Court to challenge the recent approval for the extension of an open cut coal mine between Stroud and Stratford in the Barrington Tops area. The group is concerned about the impact of the mine on water quality on the Mammy Johnsons Creek and beyond and on habitat for the endangered Giant Barred Frog. They are also concerned about dust impacts from the mine on the health of people and the environment.
This merits appeal was brought in Class 1 of the Land and Environment Court, and was heard before Chief Justice Preston, with Acting Commissioner Smith, on 9-13 and 18 May 2011. The Court heard evidence on four key issues raised by ICAG in this Class 1 merits appeal, relating to impacts on water quality, biodiversity, air quality and the Giant Barred Frog. The case was heard in Sydney, but the Court attended a site visit in Gloucester on Thursday, 12 May 2011, followed by hearing of objector evidence in the Gloucester Court House that afternoon.
On 27 June and 1 July 2011, the EDO continued to represent the Ironstone Community Action Group (ICAG) in a Class 1 merits appeal in the last two days of an eight-day hearing in the Land and Environment Court. On those days, Chief Justice Preston and Commissioner Smith heard evidence on Duralie's water management scheme for the proposed Duralie Coal Mine extension in Gloucester, and closing submissions were made by counsel for all parties. The EDO and ICAG are grateful to barrister Ashley Stafford who appeared for ICAG during the proceedings. Judgment has been reserved.
On 10 November 2011, Justice Preston handed down judgment in this Class 1 merits appeal. His Honour upheld the appeal, but granted approval for the open cut coal mine, with substantially revised conditions, addressing three of the four issues raised by ICAG during the hearing – water, biodiversity and the Giant-Barred Frog. With respect to the health impacts of fine particulate matter PM2.5, his Honour declined to impose any specific criteria for PM2.5, but strengthened conditions relating to air quality generally by making it a condition of consent that Duralie comply with the criteria set for air quality (including for PM10, which necessarily includes PM2.5).
In particular, the Court increased the areas that must be maintained and enhanced for conservation purposes from 444 hectares to 680 hectares, and the conditions include closer correlation with vegetation communities that are being cleared. Importantly, the conditions now require Duralie to ensure that any offsets are maintained and enhanced in perpetuity, by either entering into a conservation agreement under s69B of the National Parks and Wildlife Act 1974, or a public positive covenant over the offset area. The agreement or covenant must be registered on title, and record Duralie’s obligations under the conditions of approval to maintain and enhance those areas in perpetuity.
With respect to water, the Court has imposed a “no direct discharge” condition, and made it a condition of consent that Duralie shall not pollute waters within the meaning of the s120 of the Protection of the Environment Operations Act 1997. The Court also made a number of changes to the water monitoring regime, including that the mine must now test for contaminants other than just salt, including heavy metals, sediment load, pH, hardness and biological oxygen demand.
For the Giant Barred Frog (GBF), ICAG has been successful in obtaining conditions requiring a detailed longitudinal study of the life cycle and population of the GBF to be carried out over the life of the mine, and 5 years after it ceases to operate. The study must be prepared in consultation with the OEH and will help to determine what constitutes the “population” of the GBF to determine whether there has been any impact on that population for the purposes of the Commonwealth and State approvals.
The Court also imposed a number of additional conditions with respect to dust and noise from train movements between the Duralie and Stratford mines, which was a response to evidence submitted by residents during the hearing. The Court has also required Duralie to publish all management plans, studies and reports on its website.
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- Munro v
Minister for Lands and the Lands Administration Ministerial Corporation
The Minister for Lands consented to the sale of Taylor Oval to Fabcot
Pty Ltd (Woolworths) to facilitate the development of the site for
a Big W department store on 28 July 2011.
Taylor Oval is the most central rugby league and cricket ground in
Moree proximate to schools in Moree and the centre of town. Taylor
Oval is also a significant site for the local Aboriginal community
who believe it is situated near a burial ground for the Gomeroi nation.
Bodies of Aboriginal persons were excavated on the site in 1903 and
the ashes of Cheeky McIntosh, an Aboriginal leader and elder were
scattered on the oval in the 1970's. The site has also been important
for reconciliation in the town as an area where both Aboriginal and
non-Aboriginal people have mixed over the generations, and which is
historic sporting facility.
The EDO is acting for a representative of the Moree Murri Taskforce,
Lyall Munro who is challenging the decision of the Minister for
Lands to approve the sale, and the decision of the Lands Administration
Ministerial Corporation to consent to sell. The case focuses on whether
the Minister for Lands and the Lands Administration Ministerial Corporation
has complied with the requirements of the Crown Lands Act 1989.
The applicant Lyall Munro is seeking a declaration that the decision
of the Minister for Lands to consent to sell Taylor Oval is in breach
of the Crown Land Act 1989 (NSW) and is void and of no effect
and an order restraining the Minister for Lands from taking any step
to sell Taylor Oval in reliance on his purported decision.
The applicant is further seeking a declaration that the decision
of the Minister for Lands as trustee of Taylor Oval that it is desirable
sell Taylor Oval is in breach of the Crown Land Act 1989 (NSW)
and is void and of no effect.
Finally the applicant is seeking an order restraining Minister for
Lands and Lands Administration Ministerial Corporation from taking
any step to sell Taylor Oval in reliance on its purported decision.
The hearing is set down for 17th – 19th May 2011 in the Land and
Environment Court.
More information about the concerns of the Aboriginal community can
be found in an article written by Kirsty Ruddock in Eureka Street
found at http://www.eurekastreet.com.au/article.aspx?aeid=10115
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- Munro
and Nean v Minister for Planning and Moree Plains Shire Council
The Minister for Planning approved a rezoning application in Moree
which was to amended the zoning of Taylor Oval from recreation to
commercial uses to facilitate the building of a Big W department
store on the site. Taylor Oval is the main rugby league and cricket
ground in Moree and also a significant site for the local Aboriginal
community who believe it is situated near a burial ground for the
Gomeroi nation. Bodies of Aboriginal persons were excavated on the
site in 1903. The site has also been important for reconciliation
in the town as an area where both Aboriginal and non-Aboriginal people
have mixed over the generations.
The EDO acted for two elders of the Moree Aboriginal community who
challenged the rezoning. The case focused on whether the Planning
Minister and Moree Council followed the correct procedure for rezoning
land under the Environmental Planning and Assessment
Act 1979.
The Council conceded that they did not follow the correct
procedure in exhibiting and approving the draft LEP
and agreed to the orders to set aside their decisions. On
4 September 2009, by consent, Justice Lloyd declared that
the decision of Moree Plains Shire Council on 8 November 2008 to
forward the draft Moree Local Environment Plan
1995 (Amendment No. 17) was
void and no effect. He also declared that the decision
of the Minister for Planning on 2 January 2009 to approve the amendment
to the Moree Local Environment Plan 1995 (Amendment No. 17) is
void and of no effect.
Related proceedings are continuing in the Supreme Court
against the Minister for Lands' decision to revoke
the dedication of Taylor Oval for public purpose recreation.
On behalf of two Aboriginal clients who are elders
of the Gomerei Nation, the
EDO is seeking a declaration that the decision by the Minister
for Lands to notify the revocation of Crown Reserve
at Taylor Oval is void, and related injunctions. The
revocation of the dedication is an important step
in allowing Lands to lease or otherwise deal with
the land to
enable the Big W development to proceed. The Minister is also contesting
the right of the elders to bring the proceedings, as
the challenge is based on the common law test of whether they are "a
person aggrieved" by
the decision. A hearing date has been set for 26-27 November at
the Supreme Court in Sydney.
More information about the concerns of the Aboriginal
community can be found in an article written by Kirsty
Ruddock in Eureka Street found at http://www.eurekastreet.com.au/article.aspx?aeid=10115
- Ned
Haughton v Minister for Planning and Macquarie Generation;
Ned Haughton v Minister for Planning and Delta Electricity
Judgment in this case was handed down on Thursday 2 December.
The EDO acted for Ned Haughton - a student and environmental activist challenging the Minister for Planning's approvals of two new coal or gas fired power stations - Bayswater B Power Station and the Mount Piper Power Station Extension.
Both proposals were declared to be 'critical infrastructure' projects under the Environmental Planning and Assessment Act 1979 (the EP&A Act), which means that the approvals could not be challenged by third party objectors without the Minister's permission.
Mr Haughton challenged the validity of the approvals on several grounds but, most significantly, on the ground that the Minister failed to consider the impact of the projects (both alone and together) on climate change. Mr Haughton argued that the Minister was required to do so as part of his duty to consider the public interest. Similarly, Mr Haughton sought to establish that the Minister failed to consider the principles of ecologically sustainable development (ESD), particularly the precautionary principle and the principle of intergenerational equity, as he was also required to do as part of his duty to consider the public interest.
Importantly, Mr Haughton also challenged the privative clause in the EP&A Act which sought to prevent judicial review of breaches of the EP&A Act in respect of critical infrastructure projects.
On this issue, Mr Haughton was successful. The Court found that the privative clause in the EP&A Act could not remove the jurisdiction of the Court and that any person can bring proceedings to address alleged breaches of the Act.
However, Mr Haughton was unsuccessful on the remaining grounds. The Court found that although the Minister is required to consider the public interest, that requirement is general in terms of what it encompasses. Therefore, the Minister was not bound to consider any specific element of the public interest such as the principles of ESD or the impacts of the development on climate change. Rather, these are issues that can be balanced with other issues relevant to the public interest, including the need to secure the supply of electricity for the State. A failure to consider any one of these issues will not invalidate the decision. The Minister was not required to refer specifically to the principles of ESD in his decision.
To view the judgment, please click
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- Peter Gray & Naomi
Hodgson v Macquarie Generation
On behalf of Peter Gray and Naomi Hodgson, the EDO commenced civil enforcement proceedings in the Land and Environment Court against Macquarie Generation. The proceedings sought a declaration that the State-owned company has been wilfully or negligently disposing of waste at their Bayswater Power Station by emitting carbon dioxide into the atmosphere in a manner that has harmed or is likely to harm the environment in contravention of the Protection of the Environment Operations Act 1997 (NSW). Mr Gray and Ms Hodgson also sought an injunction requiring Macquarie Generation to immediately cease disposing of waste through the emission of carbon dioxide into the atmosphere.
In carrying out its electricity generation activities, Macquarie Generation has been issued with an environment protection licence which licences the company to emit certain waste but not carbon dioxide.
Bayswater Power Station, located in the Upper Hunter Valley, has the highest carbon dioxide emissions of all power stations in NSW.
Macquarie Generation filed a motion to have the matter dismissed. Justice Pain found that the Applicants' argument that Macquarie Generation is not authorised to emit any carbon dioxide at all was unlikely to succeed and dismissed that part of their case.
However, Justice Pain did not dismiss the Applicants' secondary argument. This was that even if Macquarie Generation has an implied authority to emit some amount of carbon dioxide in generating electricity, that authority is limited to an amount which has reasonable regard and care for people and the environment. This part of the Applicants' case was permitted to proceed to trial.
In May 2010, Justice Pain held that the public interest nature of the proceedings justified an order that each party should pay its own costs of the dismissal application.
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Media -
ABC TV Lateline
Transcript and video |
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Media -
Sydney Morning Herald
28 July 2009 |
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- Macquarie Generation v Gray & Hodgson
Macquarie Generation has appealed to the NSW Court of Appeal against the decision of Pain J to allow the Applicant’s secondary argument to proceed to trial.
Macquarie Generation is arguing that Pain J was wrong in finding that Macquarie Generation’s licence to pollute contains an implied limitation on how much carbon dioxide can be released.
The matter has been listed for hearing on 13 September 2011.
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- Olofsson v Minister for Primary Industries & Ors
Mrs Olofsson is the secretary of the Camberwell Common Trust, which held the Camberwell Common on trust for use by the commoners in Camberwell Village. The Common has been cared for and used by the community since 1876 for grazing of stock and other recreational activities. Mrs Olofsson challenged decisions of the (then) Minister for Lands to revoke the Camberwell Common, reserve it as a Crown reserve, and grant a licence to Ashton Coal to facilitate its plans for an open cut coal mine over the Common. She also sought an order from the Court that the Trust be served with notice of a mining lease application for the proposed South East Open Cut (SEOC) over the Common, as a landholder under the Mining Act 1992. Such notification gives rise to rights to object to mining leases under certain circumstances. The proposed SEOC covers only one parcel of land that makes up the Common.
On 11 August 2011, Justice Pain of the Land and Environment made a maximum costs order in Olofsson v Minister for Primary Industries & Ors, limiting the liability of the EDO’s client (Mrs Olofsson) in the proceedings to $10,000. The decision was a major win for Mrs Olofsson, who Justice Pain recognised is bringing the case in the public interest. The maximum costs order issued by Justice Pain was the second of its kind in the Court, and allowed Mrs Olofsson to continue with her case.
Mrs Olofsson’s main case on the revocation of the Common was heard by Justice Preston of the Land and Environment Court on 29, 30 and 31 August 2011. His Honour handed down judgment on 14 October 2011, and found in favour of the respondents. In short, Preston CJ found that the setting aside of land as a common can be automatically revoked under the Crown Lands Act 1989, when that land is reserved under s87 of that Act for a public purpose. His Honour also found that the history of tensions between the Trust and the mining company, and the potential competing use of a proposed open cut coal mine over the Common, were not irrelevant considerations or an improper purpose when revoking and reserving the land. As a result, the Court found that the revocation and subsequent reservation of the Common was valid, and that therefore so too was the licence issued to Ashton. His Honour made no finding on whether the Trust was a landholder under the Mining Act, as once a common is revoked, the trust that manages the common is automatically dissolved.
The EDO is grateful to barristers Reg Graycar and Leigh Sanderson who appeared on behalf of Mrs Olofsson.
Ashton Coal’s proposal for the South East Open Cut coal mine is still being assessed under Part 3A of the Environmental Planning and Assessment Act 1979. The proposal was recently referred to the Planning Assessment Commission for determination, and the PAC will be holding a public hearing on the proposal in early September.
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- Snowy
River Alliance Inc v Water Administration Ministerial
Corporation and Snowy Hydro Limited
The EDO is acting for the Snowy River Alliance Inc ('SRA')
in their challenge to the Water Administration Ministerial
Corporation's ('WAMC') review of the Snowy Hydro
water licence and a subsequent variation to the licence.
The Snowy Hydro Corporatisation Act 1997 (NSW)
('Act'), requires
the WAMC to conduct a review of the obligations
under the licence relating to the "Snowy River Increased Flows" and
to exhibit a copy of any state of the environment reports prepared
by the Snowy Scientific Committee ("SSC").
On 23 July 2010, the EDO commenced proceedings in the
Supreme Court of NSW on behalf of the SRA challenging
the validity of the review. SRA is arguing that the
WAMC's review failed to meet the description
of "review" as required by the Act and failed to exhibit any
SSC reports prior to the review. If the review is found to
be invalid, the variation to the licence may also be invalid.
The matter was heard before the Supreme Court on 14th March 2011. On 30 June 2011, Justice Hislop delivered judgment dismissing the plaintiff’s legal challenge. The SRA is considering its legal options.
The EDO is acting for the Snowy River Alliance Inc ('SRA') in their challenge to the Water Administration Ministerial Corporation's ('WAMC') review of the Snowy Hydro water licence and a subsequent variation to the licence. Justice Hislop of the NSW Supreme Court dismissed SRA's legal challenge in relation to the first five-year review of the Snowy Water Licence . The SRA had commenced proceedings because of the failure of the Snowy legislation to deliver real environmental flows to the Snowy River . The SRA are considering their legal options.
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- South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd
In 2011 the EDO bought proceedings on behalf of South East Forest Rescue Incorporated against the Bega Valley Shire Council and South East Fibre Exports Pty Ltd (SEFE), challenging Council’s decision to approve the installation of a pilot wood pellet manufacturing plant on 14 June 2011.
SEFE is a joint venture between Nippon Paper Industries Co Ltd and Itochu Corporation. SEFE operates a woodchip mill near Eden and is a major exporter of wood products produced in the Bega valley shire. The proposed plant on SEFE’s existing woodchip mill site is a pilot project, which will allow SEFE to examine the feasibility of constructing a full scale pellet production mill on the site.
Wood pellets are commonly used to fuel wood-fired power plants. Raw material feed for the plant is proposed to be sourced from local hardwood and softwood sawmills, including woods emanating from native forests.
Preston CJ delivered judgment on 16 December 2011, upholding 3 of South East Forest Rescue’s 4 grounds. His Honour found that Council failed to properly consider a number of matters that it was required to consider in accordance with the Environmental Planning and Assessment Act 1979: 1) the zoning objectives under cl 8(3) of Bega Valley Local Environmental Plan 2002; 2) the public submissions regarding consistency with zoning objectives and ecologically sustainable development (‘ESD’); and 3) ESD under cl 79 of the LEP and as an element of public interest under s 79C(1)(e) of the EPA Act. Significantly, His Honour held that Council was bound to consider the public submissions made as Council had exercised its discretion to advertise/give public notice to invite submissions, despite the fact that public notification was not mandated by the Act for this development.
Costs have been reserved, though the Court noted that costs should follow the event and this would ordinarily mean that there should be an order for costs of the proceedings in favour of South East Forest Rescue.
EDO congratulates and thanks Sandra Duggan, senior counsel, and Scott Nash, counsel, who appeared on behalf of South East Forest Rescue.
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- Sweetwater Action Group Inc v Minister for Planning and Huntlee Holdings Pty Ltd
The EDO is acting on behalf of the Sweetwater Action Group Inc which is challenging a decision of the Minister for Planning which would enable the rezoning of land in the Hunter Valley to allow for the development of the Huntlee Town Centre for 20,000 residents. The area contains one of the last remaining habitats of the Persoonia pauciflora, a critically endangered native shrub, and is also highly contaminated.
The grounds of the challenge focus on whether the Minister considered the requirements of State Environmental Planning Policy No. 55 (for remediation of contaminated land), and the enforceability of a Voluntary Planning Agreement proposed for the site which is designed to protect the habitat of the Persoonia and provide for additional conservation areas. The challenge also raises the issue of bias in relation to the Lower Hunter Regional Strategy which contemplated certain development on the site in exchange for conservation offsets, reflected in a Deed of Agreement with the Planning Minister that was set aside in previous court proceedings in which the EDO also acted.
This matter was heard by Justice Biscoe of the Land and Environment Court on 22-24 June 2011, with judgment handed down on 7 July 2011. His Honour found in favour of SWAG on two of its three grounds, declaring that the decision of the Minister to recommend the making of an Amending SEPP to give effect to the rezoning was void, and that the Amending SEPP was also void.
First, the Court found that the Minister failed to comply with the requirements of SEPP 55 in recommending the making of the Amending SEPP, as the Minister had not been provided with the findings of any preliminary investigation on contamination. Second, the Court found that the Minister took into account an irrelevant consideration, being an agreement that was purportedly made under s93F of the Environmental Planning and Assessment Act 1979 (a voluntary planning agreement). His Honour found that the agreement did not provide for a suitable means of enforcement, such as a bond or guarantee, in the event of a breach by Huntlee. Therefore it could not have been a VPA made in accordance with the Act and should not have been taken into account by the Minister in recommending the rezoning.
The EDO is grateful to Ms Christine Adamson SC and Mr James Hutton who appeared as counsel for the Sweetwater Action Group in the Land and Environment Court, as well as the assistance of Mr Mark Seymour.
Huntlee and the Minister both filed separate appeals against the decision of Justice Biscoe, challenging his Honour’s findings on SEPP 55 and the voluntary planning agreement. Although there were some 15 grounds of appeal between the two Appellants, there was significant overlap in the issues raised by Huntlee and the Minister. The appeal was heard by Beazley JA, Tobias AJA and Sackville AJA of the Court of Appeal on 4 November 2011.
With respect to SEPP 55, the grounds of appeal included that the requirements of SEPP 55 could not constrain the exercise of power to recommend the making of the Amending SEPP, and that the Minister was not the relevant “planning authority” for the purpose of clause 6 of SEPP 55. The Appellants argued that rather, the Director-General was the planning authority for the purposes of SEPP 55, and that therefore it was not necessary for the Minister to also comply with SEPP 55. Further, relying on Project Blue Sky, it was argued that non-compliance with SEPP 55 does not necessarily invalidate the Ministerial recommendation. It was also argued that the Recommendation Decision was not justiciable, being of a political rather than administrative nature.
With respect to the voluntary planning agreement, the appellants argued that the statutory requirement that such an agreement must include a “suitable means” of enforcement should be broadly interpreted, such that there was no need for Huntlee to provide security such as a bond or guarantee for monetary contributions. The Appellants also argued that whether the VPA provides a suitable means of enforcement is a matter for the Minister to determine, not a court, and that in any event, non-compliance with the requirements of s93F of the Act ought not result in the Minister’s recommendation being held to be invalid.
The Court of Appeal has reserved its judgment. The EDO is grateful for the assistance of Mr Robert Beech-Jones SC and Mr James Hutton who appeared for Sweetwater in the appeal proceedings.
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- Western Sydney Conservation Alliance Incorporated v Penrith City Council and Maryland Development Company Pty Ltd and St Marys Land Limited
The Western Sydney Conservation Alliance Incorporated (WSCA) bought proceedings against Penrith City Council (Council), Maryland Development Company Pty Ltd and St Marys Land Limited, the latter two companies being subsidiaries of Lend Lease.
WSCA challenged the validity of council’s decision to approve a number of development applications for the subdivision of land for residential development at the former Australian Defence Industries site now known as Jordan Springs, in Penrith. The land proposed to be developed is adjacent to the Wianamatta Regional Park and contains a number of endangered and vulnerable ecological communities and species including Cumberland Plain Woodland, which is a critically endangered ecological community. The development would result in the clearing of Cumberland Plain Woodland, impact on a number of other protected species, and would not provide adequate buffer zones and wildlife corridors between the Regional Park and residential lots.
WSCA alleged that Council had failed to take into account the Cumberland Plain Recovery Plan of February 2011, as required by the Environmental Planning and Assessment Act 1979 (EPA Act) and the Threatened Species Conservation Act 1995 (TSC Act).
The Court held that s 69 of the TSC Act does not apply to the grant of consent to a development application under the EPA Act. Therefore, grounds 2, 3 and 4 failed as those grounds were premised on the applicability of s 69.
Upholding the first ground, the Court held that Council had failed to consider the Recovery Plan as required under the EPA Act, as the Species Impact Statement and other documents before Council erred in their treatment of the recovery plan. The Court ordered that the operation of the consents be suspended and that the consents be validated upon the Council reconsidering the development applications, having regard to the details of the Recovery Plan. Each party was ordered to pay its own costs.
EDO thanks Chris Norton of counsel, who appeared on behalf of Western Sydney Conservation Alliance Incorporated.
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- Yass Environmental Responsibility Network Inc v Yass Council & Anor
The EDO, on behalf of Yass Environmental Responsibility Network Inc commenced judicial review proceedings in the Land and Environment Court to challenge development consent to a 175 lot subdivision at Yass. The primary issue in dispute was the impact that the development would have on a listed threatened species, being striped legless lizards (Delma Impar), and the fact that the proponent did not prepare a species impact statement to accompany the application.
Yass Environmental Responsibility Network raised the potential for the matter to be referred to mediation with the respondents. This course of action was subsequently agreed to by all parties and the matter was referred to a Court-appointed mediator. Commissioner Dixon of the Land and Environment Court presided over the mediation.
Through the mediation process the parties were able to come to an acceptable agreement. This included the finalisation of a conservation management plan for striped legless lizards and the imposition of restrictive and public positive covenants on the portion of land used for lizard habitat. By consent, the parties had the Court dismiss the matter on 12 October 2011.
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