EDO NSW - Key Cases

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Current Cases

The EDO has commenced proceedings in the Land and Environment Court on behalf of Red Gum Forest Action Inc (RGFA) against Forests NSW. RGFA contend that Forests NSW is logging the Riverina Forestry Management area along the Murray and Murrumbeidgee Rivers without an appropriate 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 is not subject to an RFA – as the comprehensive assessment required under an RFA has 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 does not have an approval under Part 3A to log in this area, making existing logging operations unlawful. A Part 3A application has been lodged but no approval has been granted.

Newcastle & Hunter Valley Speleological Society v Upper Hunter Shire Council and Stoneco Pty Limited

The EDO is acting for the Newcastle & Hunter Valley Speleological Society Inc. (NHVSS) in proceedings before the Land and Environment Court challenging a decision of Upper Hunter Shire Council to allow a limestone quarry in Murrurundi, NSW.

The limestone quarry is to have a 30 year life and will result in the removal of 2.4 million tonnes of high grade limestone from the hillside using drill and blast methods. The development and operation of the quarry will involve clearing of significant stands of trees on the site.

The 8 day hearing in the Land and Environment Court was heard on 30 November 2009 to 9 December 2009, and the Court has reserved its decision.

NHVSS argued that the quarry should not be approved because there is inadequate evidence concerning the likelihood of caves on the project site, and that any caves on the site will be significantly impacted by the quarry. NHVSS also submitted that the quarry does not encourage the principles of Ecologically Sustainable Development (in particular the precautionary principle), and will have an adverse effect on biodiversity including 7 hectares of White Box Yellow Box Blakely's Red Gum Woodland (an endangered ecological community).

Peter Gray & Naomi Hodgson v Macquarie Generation

On 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 Craig Lenehan 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. Before Justice Pain, Macquarie Generation argued that the matter should be dismissed because Macquarie Generation is authorised to emit unlimited levels of carbon dioxide into the atmosphere under its environmental protection licence and this alleged authority is a complete defence to the Applicants' claim. The Applicants contended that there are real questions of law and fact to be tried, including a real question of law as to whether the environment protection licence does in fact authorise the emission of unlimited levels of carbon dioxide at Bayswater Power Station in a manner that harms the environment. The Applicants therefore argued the case should be allowed to go to a full trial. The Court has reserved its decision.

Blue Mountains Conservation Society v Delta Electricity

On 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 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.

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Nambucca Valley Conservation Association Inc v Nambucca Shire Council & Anor

The Nambucca Valley Conservation Association Inc (NVCA) has commenced proceedings in the Land and Environment Court challenging the decision of Nambucca Shire Council to allow a rural residential development to proceed in core koala habitat. In its 26 years as a community association, this is the first time that the NVCA has decided to initiate legal proceedings.

The NVCA is challenging the decision on a number of grounds, including the significant impact on threatened species (including the koala) and an endangered ecological community; failure to consider provisions of the Nambucca Local Environmental Plan; failure to properly exhibit the proposal after it was amended; and improper deferral of environmental considerations by the Council. The case was part heard in August 2009 and the hearing is scheduled to be completed in late October 2009.

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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.