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Current Cases
Friends of Turramurra Inc v Minister for Planning The EDO is acting for the Friends of Turramurra Inc who have commenced class 4 proceedings in the Land and Environment Court to challenge the decision of the Minister for Planning to gazette the Ku-ring-gai Local Environmental Plan (Town Centres) 2010. The case will focus on whether the correct procedures for making a new LEP under the Environmental Planning and Assessment Act 1979 were followed with particular focus on biodiversity issues and public participation. The matter is listed for first directions on 17th September 2010. 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. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Royal Botanic Gardens and Domain TrustThe EDO, on behalf of Bat Advocacy NSW Inc, has commenced proceedings in the Federal Court challenging a decision of the Minister for Environment Protection, Heritage and the Arts under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to approve the relocation of grey-headed flying-foxes from the Royal Botanic Gardens in Sydney. The Botanic Gardens colony of flying foxes is one of the largest camps in the Sydney metropolitan area. Occupancy at the gardens has been recorded at as high as 35,000 bats, representing approximately 8.5% of the total species population. Loss of roosting habitat is identified in the National Recovery Plan for the grey-headed flying fox as a high priority threat and the impacts of loss of long-term camps is not known. The challenge is brought on the grounds that the decision was an improper exercise of power conferred by sections 130(1) and 133 of the EPBC Act because the Minister failed to take into account (1) whether the Botanic Gardens is critical habitat for the flying fox, (2) the social matters involved in moving the flying fox to areas outside the Botanic Gardens and conflict within the community, (3) all adverse impacts of the decision on matters protected by Part 3 of the EPBC Act due to the approval remaining effective until 2039, and (4) other information the Minister had on relevant impacts made in public submissions. Red Gum Forest Action Inc v Forests NSWThe EDO commenced proceedings in the Land and Environment Court on behalf of Red Gum Forest Action Inc (RFA Inc) against Forests NSW. RFA Inc contended that Forests NSW was logging the Riverina Forestry Management area along the Murray and Murrumbidgee Rivers without the requisite legal approval. Most forestry operations in NSW are subject to Regional Forestry Agreements (RFAs) and logging operations in the particular RFA area are carried out in accordance with an Integrated Forestry Operations Approval and therefore excluded from assessment under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Riverina area was not subject to an RFA - as the comprehensive assessment required under an RFA had not been undertaken. In 2005 the Minister ordered that Part 5 activities like those of Forests NSW are projects under Part 3A of the EP&A Act. Forests NSW did not have an approval under Part 3A of the EP&A Act to log in this area, making the existing logging operations at the time unlawful. A Part 3A application had been lodged but no approval was granted. As the matter was progressing towards a hearing the NSW Parliament introduced the National Park Estate (River Red Gum Reservations) Act 2010. The Act places much of the River Red Gum Forests into State Reserves and the logging that continues outside of those reserves are now subject to an approval under the Forestry and National Parks Estate Act 1998. RFA Inc discontinued its case in the Land and Environment Court against Forests NSW. The EDO would like to thank Jason Lazarus of Counsel for all of his assistance in the matter. Ned Haughton v Minister for Planning and Macquarie Generation; Ned Haughton v Minister for Planning and Delta Electricity The EDO is acting for Ned Haughton a student and environmental activist in challenging the Minister for Planning's approvals of concept plans for the Bayswater B Power Station and the Mount Piper Power Station Extension. The proponents of the new powers stations are Macquarie Generation (Bayswater B) and Delta Electricity ( Mount Piper ) - both of which are State owned corporations. Both proposals are classified as critical infrastructure pursuant to the Minister's critical infrastructure declaration dated 26 February 2008. The concept plans for the two new power stations were approved by Tony Kelly, the Minister for Planning, on or about 12 January 2010 under section 75O of the Environmental Planning and Assessment Act 1979. The approvals were not notified to the public until 3 March 2010. The proceedings were commenced in the Land Environment Court on 3 June 2010. Mr Haughton seeks a declaration that the concept plan approval is invalid and of no effect; an order quashing the concept plan approvals; and, an injunction restraining each of the proponents from taking any action in reliance on the concept plan approvals. If these new power stations are powered by coal, they are likely to increase NSW's carbon dioxide emissions by over 15% and will make the State's greenhouse targets almost impossible to meet. The matter has been listed before the Court on 25 June 2010.
No Ship Action Group Inc v Minister for the Environment, Heritage and the Arts & Anor The EDO is acting for the No Ship Action Group Inc ('NSAG') in proceedings in the Commonwealth Administrative Appeals Tribunal ('AAT'). NSAG is challenging the decision of the Federal Minister for the Environment's delegate to grant a permit allowing the scuttling of the ex-HMAS Adelaide approximately 1.7km off Avoca Beach for the purpose of an artificial reef. NSAG's concerns include the likelihood of PCBs leaching into the environment. The permit was granted under the Environment Protection (Sea Dumping) Act 1981. The decision was made to grant the permit on 22 March 2010. The NSW Department of Lands intended to scuttle the ship on 27 March 2010. At an urgent hearing on 24 March 2010, Downes J, President of the AAT granted a stay on the decision to scuttle the ship until the proceedings are determined. The proceedings will consider whether the decision of the Minister's delegate to grant the permit is the correct or preferable one on the basis of expert evidence. This case will also look at the consistency of the proposed scuttling with the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972. The case is listed for hearing on the 5-8 July 2010. Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited The EDO acted for the Newcastle and Hunter Valley Speleological Society Inc (NHVSS) in its appeal against a decision of the Council to approve a Limestone quarry on the Western Side of the Hunter Valley. The major issues on appeal were the impacts of the quarry on an endangered ecological community (EEC); the impacts on caves and cave dwelling fauna; and other broader issues and concerns of the resident objectors (like road, dust and traffic concerns). The Court found that the proposal was not likely to significantly affect the EEC, because there were sufficient measures in place to protect against any adverse impact. The Court held that if appropriate conditions can be drafted to address the matters raised, the proposal is appropriate to be approved. The Court made further directions and a timetable for any evidence and submissions on the pre-blasting assessment protocol and amended conditions.
Peter Gray & Naomi Hodgson v Macquarie GenerationOn behalf of Peter Gray and Naomi Hodgson the EDO has commenced class 4 civil enforcement proceedings in the Land and Environment Court against Macquarie Generation. The proceedings seek 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 section 115(1) of the Protection of the Environment Operations Act 1997 . Mr Gray and Ms Hodgson also seek 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. Mr Gray and Ms Hodgson are environmental activists and members of Rising Tide Australia , a grass roots non-profit community group that has campaigned on the issue of climate change since 2004, particularly in relation to coal-fired power generation in the Hunter region of NSW. Bayswater Power Station, located in the Upper Hunter Valley , has the highest carbon dioxide emissions of all power stations in NSW. Mr Gray and Ms Hodgson will be represented in Court by Ian Lloyd QC and Lisa Doust of Counsel. Andy Pitman, a lead author of the IPCC Fourth Assessment Report, will be providing expert witness evidence. Macquarie Generation's motion to have the matter dismissed was heard in the Land and Environment Court on 2 December 2009. Justice Pain delivered judgment in respect of this motion on 22 March 2010. Justice Pain found that the Applicants' argument that Macquarie Generation is not authorised to emit any carbon dioxide at all is unlikely to succeed and dismissed that part of their case. 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. Therefore, the Applicants' case as to whether Macquarie Generation is authorised to emit unlimited levels of carbon dioxide can now proceed to trial. On 28 May 2010, Justice Pain held that the public interest nature of the proceedings justified an order that the each party should pay its own costs of the dismissal application heard on 2 December 2009. The Applicants' motion to amend their pleadings following Justice Pain's 22 March 2010 judgment was heard on 5 August 2010. Judgment was reserved.
Blue Mountains Conservation Society v Delta ElectricityOn behalf of the Blue Mountains Conservation Society 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.
Munro and Nean v Minister for Planning and Moree Plains Shire CouncilThe 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
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Notice of Appeal [PDF 431 KB] |
Hastings Point Progress Association v Tweed Shire Council & Aeklig P/L
Hastings Point Progress Association Inc (HPPA) appealed to the NSW Court of Appeal a decision of the Land and Environment Court that held that certain provisions of the Tweed LEP were inconsistent with the Seniors Living SEPP (as it was then called) and therefore did not need to be considered by Tweed Shire Council when it granted consent to a seniors living development.
The particular provision of the Tweed LEP mandates that Tweed Shire Council cannot consent to development if it is determined that it will have an unacceptable cumulative impact on the community, locality or catchment or on the area of Tweed as a whole. HPPA argued in the first instance that Tweed Shire Council failed to satisfy itself that the seniors living development would not have an unacceptable cumulative impact on the community, locality or catchment, and it ought to have.
HPPA believes that the development will have an unacceptable cumulative impact on the community, locality or catchment. It is the first development of significant bulk, scale and height and amounts to over-development of the coastal village of south Hastings Point.
In the Court of Appeal HPPA argued that the trial judge fell into error as the Tweed LEP clause was not inconsistent with the Seniors Living SEPP and it ought to have been considered.
The Court of Appeal delivered a split decision. Basten J found for HPPA in dissent and McColl J and Young J found against HPPA. The appeal was lost and costs were awarded against the community group.
HPPA has filed a Notice of Motion with accompanying submissions invoking the Slip Rule, at this stage HPPA contends there may be an error in the judgment. The Notice of Motion will be heard on 2 November.
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Notice of Appeal [PDF 884 KB] |
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This site was last updated
Tuesday 31 August, 2010
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