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Advice and Representation
Current Cases
On 6 March 2012 EDO NSW commenced merit appeal proceedings in the Land and Environment Court on behalf of the Bulga Milbrodale Progress Association Inc. The appeal challenged the Warkworth open cut mine extension project, which permits an additional 18 million tonnes of coal to be mined per year and brings the mine closer to Bulga village. Controversially, it also allows the mining of part of a biodiversity offset that was required to be protected as a condition of a previous approval in 2003. The biodiversity offset, as well as providing habitat for threatened flora and fauna, acts as a buffer between the village of Bulga and the mine. Other key issues in the case are the social impacts of the extension on Bulga residents, particularly as a result of increased noise and dust, and the analysis of the economic impacts of the project. The Bulga Milbrodale Progress Association Inc sought refusal of the mine extension on the basis that the mining of the biodiversity offset is contrary to the public interest and ecologically sustainable development, and that the expansion will result in detrimental economic and social impacts on the Bulga community that are contrary to the principles of ecologically sustainable development. On 15 April 2013, the Land and Environment Court upheld the appeal and disapproved the project application. The Court concluded that the project would have significant and unacceptable impacts on biological diversity, including on endangered ecological communities, noise impacts, and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the extension project should not go ahead. Existing mine operations at Warkworth mine are still authorised under the existing consent, with mining authorised until 2021. However, the extension project will not go ahead, and the biodiversity offset will not be mined. EDO NSW would like to thank Counsel, Robert White, for his advice and advocacy in this matter.
EDO NSW acted for Fullerton Cove Residents Action Group (FCRAG) in a challenge to Dart Energy’s proposal for the drilling of coal seam gas exploration wells at Fullerton Cove near Newcastle. The Pilot Appraisal Exploration Program (PAEP) is for two vertical wells drilled into two separate coal seams, with four lateral wells, two in each coal seam. The PAEP includes the continuous pumping of water out from the coal seams (16,000 Litres per day) for 12 months, allowing the gas to flow. It is to be located on a floodplain zone, in a high water table area, near an internationally-listed RAMSAR wetland. FCRAG argued that the PAEP is high-impact development, and Dart should have prepared a full Environmental Impact Statement (EIS), and be subject to the formal public consultation processes under Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). FCRAG also argued that the PAEP was not properly assessed under Part 5 of the Act, particularly in relation to potential impacts on groundwater, threatened species and ecological communities. In particular, the Department of Trade and Investment had not been provided with any groundwater assessment by Dart before approving the project. On 5 September 2012, FCRAG was successful in obtaining an injunction restraining Dart Energy from drilling the wells until the main case had been decided. The injunction was necessary because Dart refused to agree to stop work while the case was on foot. In delivering judgment, Justice Sheahan found that FCRAG had a reasonably arguable case, and that damages would not be an adequate remedy if the injunction was refused and significant environmental harm was caused beneath the surface. His Honour recognised that this was a public interest case, and as such, FCRAG was not required to provide any undertaking as to damages. The main proceedings were heard in the Land and Environment Court on 15-19 October 2012 before Justice Pepper. On 28 March 2013, Justice Pepper dismissed FCRAG’s case, delivering a 339 paragraph judgment on the legal and factual issues. The Court found that although there was no consideration of any groundwater assessment, the Department had complied with its requirements to consider environmental impacts “to the fullest extent possible” under s111 of the EPA Act. Her Honour took into account the fact that this was a pilot project, and the Department had general knowledge of the geology of the area, and information collected in reports for nearby exploration wells. Justice Pepper also found that there was no failure to consider biodiversity impacts, as the Department had “general regard” to the seven-part test for threatened species under section 5A of the Act. The Court agreed with FCRAG’s view that the decision as to whether or not an activity is likely to have a significant impact is one that should be determined objectively by the Court, regardless of any opinion formed by the Department under Part 5 of the Act. However, Justice Pepper found that in this case, the project was not likely to have a significant effect on the environment, and that therefore no EIS was required.
EDO NSW is representing Southern Highlands landholders (Mr and Mrs Alexander) in defending proceedings brought by Hume Coal Pty Ltd, a Korean owned mining company. An access arrangement had been entered into by Hume Coal Pty Ltd with a landowner (neighbouring the Alexanders’ property) who owns the property where prospecting is taking place (Mr Koltai). To access Mr Koltai’s property for prospecting, Hume Coal Pty seeks to use a carriageway located on the Alexanders’ land. However Hume Coal has not entered into an access arrangement with the Alexanders. Further, restrictive covenants have been placed on both of the relevant properties which could have the effect of preventing the land from being used for commercial or industrial purposes. On 7 December 2012 EDO NSW successfully defeated Hume Coal’s application for an interlocutory injunction which sought to restrain the Alexanders from allowing invitees onto their private land (the invitees had formed a blockade on the carriageway) preventing Hume Coal from accessing Mr Koltai’s property via the carriageway in order to conduct prospecting operations (visit our website to read the judgment on the interlocutory proceedings). In proceedings before the Court on 14 December 2012 Hume Coal Pty Ltd was successful in seeking an order that the matter be expedited. The final hearing of Hume Coal’s application for an injunction against the Alexanders was heard by the Land and Environment Court on 18 February 2013. The Court granted a final injunction to Hume Coal to use a carriageway in the Southern Highlands to undertake exploration activities, and ordered the owners of the carriageway, the Alexanders to take steps to prevent third parties blockading it. Hume Coal had originally sought an interim injunction that was refused in December 2012. In granting the final injunction, the Court has allowed Hume Coal to use the carriageway on the basis that the Mining Act 1992 essentially overrides the rights of landowners and provides for terms of access for exploration. The Court rejected the argument of the Alexanders that the mining company required an access agreement with them prior to use of the carriageway. The Court also rejected arguments that a restrictive covenant on the property which sought to prevent industrial uses prevented mining exploration. EDO NSW is grateful to barristers Ms Jane Needham SC and Mr Simon Chapple for their assistance in these proceedings.
EDO NSW is representing Illawarra Residents for Responsible Mining Inc (IRRM) in Class 4 judicial review proceedings in in the Land and Environment Court of NSW. IRRM seeks among other things, an order restraining Gujarat from carrying out mining at an area referred to as ‘Longwall 4' until specific approval or development consent under the Environmental Planning & Assessment Act 1979 ( EP&A Act ) is granted. In April 2012, Gujarat commenced mining operations at Longwall 4. Our client is concerned that the operations being undertaken, although within the area covered by consolidated coal licence 745, are not within the area to which the original Project Approval gives approval to carry out mining operations. Furthermore, that in commencing and continuing operations at Longwall 4 without project approval under Part 3A or development consent under Part 4, Gujarat is in breach of the EP&A Act. Subsequent to the commencement of proceedings, Gujarat made an application to the Court requiring IRRM to provide a bank guarantee for the sum of $75,000 to secure the respondent's costs in the event that proceedings were unsuccessful. On 22 November 2012, the Court handed down judgement in relation to this application. The Court made orders upholding Gujarat's motion for security for costs, but settling the sum at $40,000. The substantive proceedings are stayed pending compliance with this requirement by IRRM. A further directions hearing is scheduled for Friday 14 December 2012. EDO NSW is grateful to barrister Mark Seymour for his assistance in these proceedings EDO NSW has filed civil enforcement proceedings on behalf of Macarthur Bushwalking & Cycling Club, seeking orders to stop pollution of the George’s River in the Illawarra Region. The case was filed on 16 July 2012 against Endeavour Coal and Illawarra Coal Holdings, subsidiaries of BHP Billiton. Illawarra Coal owns and operates BHP’s underground coal mine West Cliff Colliery, near Appin, and Endeavour Coal holds the environment protection licence for the mine. MBCC is concerned that a range of chemical toxicants including arsenic, zinc, copper, aluminium and nickel are being discharged into the George’s River from the West Cliff Colliery via Brennans Creek at levels well above the Australian and New Zealand Environment Conservation Council (ANZECC) Guidelines for healthy river systems. The George’s River falls within the Botany Bay Catchment, and its headwaters are 60km south-west of Sydney in the town of Appin. It flows past the West Cliff Colliery north towards Liverpool, then east towards Sydney before discharging into Botany Bay. The pollution is alleged to have occurred over an extended period of time, since January 2002, in contravention of s120 of the Protection of the Environment Operations Act 1997 which prohibits the pollution of waters. The matter is listed for directions before the Court for further directions on 24 May 2013. On 26 July 2012, the EPA issued a media release advising that it was looking to place limits on BHP’s licence with respect to salt and metals being discharged into Brennans Creek. In September 2012, BHP applied to vary its licence seeking limits for a number of key pollutants alleged in this case including aluminium, nickel, zinc, copper, arsenic, lead and salinity. The variation, if granted, would effectively authorise much of the pollution alleged in this case. On 24 April 2013, the EPA determined BHP’s application by issuing a licence variation notice setting limits for a range of pollutants, but importantly also requiring BHP to carry out a program of works to ensure 95% species protection in Brennans Creek and the George’s River by December 2016. In reaching its decision, the EPA consulted with the public on BHP’s application, accepted public submissions, and met with community representatives on two occasions about the variation. EDO NSW is grateful for the assistance of James Johnson who is acting as counsel for MBCCC in the litigation. Click here for media coverage of this case. Click here for a copy of BHP’s licence variation application and the public submissions. EDO NSW acted for the Southern Highlands Coal Action Group Pty Ltd (SHCAG) in its appeal against the Minister for Planning and Infrastructure’s approval of Boral Cement Limited’s expansion activities at Berrima Colliery. This approval gives Boral the authority to double its coal output from the Berrima Colliery to 440,000 tonnes per year, and will see operations continue for another eight years. Importantly the Court also considered the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 and the Sydney Catchment Authority’s Neutral or Beneficial Effect on Water Quality Assessment Guideline 2011. EDO NSW is grateful to barristers Ian Hemmings and Nick Eastman for their assistance with this matter.
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