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Past Cases
Munro and Nean v Minister for Lands – Supreme Court Proceedings No. 30041 of 2009 Lyall Munro and Wayne Nean brought proceedings against the Minister for Lands for revoking the dedication of Taylor Oval Moree as an oval used for a public purpose under the Crown Lands Act. The applicants are Traditional Owners who are concerned about proposals to develop a culturally significant site to the Gomeroi people and also an important recreational facility in Moree. The challenge was based on the failure of the Minister to take into consideration the Lands assessment that found the highest and best use of Taylor Oval was for recreation and to follow other procedures required by the Crown Lands Act. The Crown Land Act Assessment Report concluded that Taylor Oval is “currently best suited to urban and non-urban recreation and community or public purposes”. The ancillary Preferred Uses Report similarly concluded that Taylor Oval be retained as Crown Land reserved and dedicated for public recreation purposes. The removal of the dedication was to facilitate the rezoning of Taylor Oval for the construction of a Big W and ultimately the lease or sale to Big W for that purpose. The EDO took on the case to ensure that proper processes are followed before crown land that is of significance to the local community is leased or sold for private purposes. The applicants were successful in their action against the Minister for Lands, with the Minister agreeing he had failed to take into consideration the relevant assessments. The Minister for Lands therefore agreed to consent orders that restrain him from further revoking the public purpose dedication of Taylor Oval as gazetted. Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Minister for Mineral ResourcesEDO took proceedings in the Land and Environment Court challenging the exploration licence and coal authorisation granted to Coal Mines Australia Pty Ltd by the Minister for Mineral Resources. In the proceedings, Caroona Coal Action Group Inc argued that the licence was invalid on three (3) grounds. The first ground was that the licence, which was transferred from the Director-General of the Department of Mineral Resources to Coal Mines Australia Pty Ltd, was not validly renewed in the past, such that there was no valid licence in place to transfer. The second ground was that the procedure, as per the Mining Act, was not followed by the Minister when the licence was transferred to Coal Mines Australia Pty Ltd, because the Minister purported to grant a new licence, rather than transfer an existing one. Finally, the Caroona Coal Action Group Inc argued that the Minister exceeded his power when granting the licence to Coal Mines Australia Pty Ltd because it was granted for a period exceeding 5 years, the maximum term for an exploration licence allowed by the Mining Act. The Court rejected all 3 grounds. The Court found that the first ground was not established by the applicant, finding that the documentary evidence did not show that the Mining Act was not complied with when the license was renewed prior to its partial transfer to Coal Mines Australia. In relation to the second ground the Court found that the legislative requirements for a licence transfer were met. The third ground, although established, was not significant enough to render the grant of the licence void. Thanks to Bruce McClintock and Jackie Gleeson, who appeared as counsel for Caroona Coal Action Group Inc in these proceedings. Rivers SOS Inc v Minister for Planning & Helensburgh Coal Pty Ltd These proceedings were bought on behalf of Rivers SOS against the Minister for Planning and Helensburgh Coal Pty Limited. The appeal was against the Minister's decision to approve the Metropolitan Coal Project under Part 3A of the Environmental Planning and Assessment Act 1979. The Land and Environment Court upheld the approval on 16 December 2009. The approval allows for an expansion of the Metropolitan Coal mine, including extraction of up to 3.2 million tonnes per annum of coal over 23 years using longwall mining techniques directly beneath the Woronora Reservoir. The Minister had directed the Planning Assessment Commission (PAC) to consider submissions, hold a public hearing and report on the potential subsidence impacts of the Metropolitan Coal Project on the environment. After the public hearing and submission process, the mining company submitted a significantly different mine plan for consideration. The PAC then considered and reported to the Minister on the revised mine plan, which was ultimately approved by the Minister without further community or agency input on 22 June 2008. Justice Preston held that the PAC process was not flawed, there was no obligation on the PAC to hold a further public hearing on the revised mine plan and there was no breach of natural justice. The Court's decision demonstrates the wide discretion given to the Minister to assess and approve major projects under Part 3A of the Environmental Planning and Assessment Act 1979. In assessing future applications the Minister is free to approve major projects that have been substantially modified at a very late stage in the assessment process, without providing any further opportunity for community input and agency involvement. In relation to the four other grounds appeal, two grounds related to the Minister's condition making and delegation powers under Part 3A. Preston CJ upheld the two conditions at issue, which allowed for to the undermining of three swamps and provided for offset and remediation requirements. The Court rejected the Applicant's submissions that the Minister had not complied with the requirements of s 47(3) of the Sydney Water Catchment Management Act 1998, holding that there is only one notice required under s47 and that such notice was given to the Sydney Catchment Authority. The Court also rejected the Applicant's submissions in relation to the application of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) under Part 3A, holding that the Mining SEPP did not apply to the Minister's exercise of power under s75J(1) of the Environmental Planning and Assessment Act 1979 to approve the project. The EDO would like to acknowledge and thank Tim Robertson SC and Jason Lazarus for their appearances and contribution to the case. We would also like to acknowledge the contribution of Adrian Brown of Denver, United States of America, who was retained as an expert witness in the proceedings and attended the hearing.The EDO represented three protestors who were charged with Trespass and Approach under the Forestry Regulation in June this year for blockading forestry operations in the Red Gum State Forest of Millewa near Deniliquin. The protestors resorted to direct action to protect the logging of the iconic forests as the logging was occurring without lawful authority. Forests NSW is required to obtain a Part 3A approval under the Environmental Planning and Assessment Act 1979 to undertake logging operations in the Riverina. However, no approval had been obtained at the time of the protest and has still not been obtained. During a 3 day hearing the Court was asked to determine the legality of the logging operations. As there was no Part 3A approval for the forestry operations, charges under the Forestry Regulation could not be upheld. All three protestors were found not guilty in the Deniliquin Local Court on Tuesday 1 December. The EDO was guided by the able assistance of Ken Averre of Counsel. Hill Top Residents Action Group v Minister for Planning and NSW Sport and RecreationJustice Biscoe of the Land and Environment Court upheld the appeal by Hill Top Residents Action Group Inc against the approval by the Minister for Planning of a Regional Shooting Complex at Hill Top, in the Southern Highlands, declaring the Minister's approval void. HTRAG successfully challenged the approval on the basis that the shooting range was prohibited under Part 3A of the Environmental Planning and Assessment Act 1979 and the State Environmental Planning Policy (Major Projects) 2005. The Court found that the ‘range danger area', essentially a designated buffer zone to capture stray bullets, was not permissible in the part of the site zoned as an environmental conservation area under the State Environmental Planning Policy (Major Projects) 2005. The Court further found that the range danger area was an essential part of the project, and as a result found the entire approval void, and made an order restraining the Department of Sport from doing anything further on the site pursuant to the project approval. In addition, the Court accepted HTRAG's submission that the Independent Hearing and Assessment Panel was not properly constituted on the basis that former politician, Ian Armstrong, was not an 'expert'. However, the Biscoe J found that this did not lead to invalidity because consideration of the expert report was not mandatory. Thanks to Tim Robertson and Jason Lazarus who acted as counsel in these proceedings.
Georgina Woods, Carly Phillips, Jonathan Moylan & Ridley Leathart v Director of Public ProsecutionsThe EDO acted on behalf of four climate change protestors in a criminal appeal against an order made by Magistrate Colin Elliot at Raymond Terrace Local Court for the protestors to pay Tomago Aluminium Company Pty Limited (51.55% owned by Rio Tinto Alcan) $5000 under s 77B of the Victims Support and Rehabilitation Act 1996. The protestors, who were campaigning against cheap electricity and CPRS concessions being provided to heavy polluters such as Aluminium smelters, attached themselves to railings on the premises of Tomago Aluminium Smelter blocking the passage of trucks. The protestors were charged and convicted with entering inclosed lands and resisting or hindering police. In addition, they were imposed with the victim's compensation order. The appeal was heard in the District Court before Justice Blanch on 19 November 2009. In the appeal, the protestors argued that there was no reliable evidence supporting the alleged loss and there was no link between the enter inclosed land offence and the alleged loss to justify the awarding of the compensation order. The protestors also sought to question whether it is appropriate for the Victims Support and Rehabilitation Act 1996 to be invoked by big business to deter or disable peaceful political expression. Justice Blanch quashed the compensation order and held that the order should not have been made by the trial judge essentially because there was no reliable evidence of the alleged loss suffered by Tomago Aluminium. Specialist criminal law barrister, Ken Averre, appeared for the protestors in the appeal. The EDO would like to thank Mr Averre for his work in this matter.
Sweetwater Action Group Incorporated v Minister for Planning & Huntlee Holdings Pty LtdOn 9 February 2009 the Minister for Planning approved a Concept Plan for the new Huntlee Town Centre in the Lower Hunter. The Concept Plan approval was to facilitate an area to house over 20,000 people at North Rothbury, despite the site being ranked last under the Department of Planning's assessment of 91 possible development sites in the Lower Hunter Valley. The EDO acted for the Sweetwater Action Group Incorporated (SWAG) a group of concerned residents who challenged the Concept Plan approval and related rezoning of the site. In 2006 a Memorandum of Understanding (MOU) and a Deed of Agreement were signed by Hardie Holdings Pty Ltd and the Minister for Planning in relation to the Huntlee site, under which the Minister agreed to facilitate development for residential and commercial purposes. In exchange, Hardie Holdings Pty Ltd was to dedicate 876 hectares of land for a conservation reserve, raising issues about bias in the decision making process and the consideration of irrelevant matters. Also, North Rothbury is the only place where the critically endangered plant, Persoonia pauciflora is found. SWAG was concerned that the Minister had not considered the precautionary principle and biodiversity principle in assessing the development. There were also concerns about the appropriateness of locating a large new population in an area that is not well serviced by public transport or other facilities. Given the existence of an MOU and Deed between the developer and the Minister for Planning, the case raised similar issues to those raised in the Catherine Hill Bay/Gwandalan case (see below). On 19 October 2009, the Land and Environment Court declared that the Concept Plan approval and related rezoning of the site were invalid and of no effect, and ordered that these decisions be quashed. The Minister for Planning and Huntlee Holdings Pty Ltd consented to these declarations and orders, in light of the decision by Justice Lloyd in the Catherine Hill Bay / Gwandalan case (see below). The Court also ordered that the Minister for Planning and Huntlee Holdings Pty Ltd pay SWAG's legal costs. The EDO acknowledges and thanks Dr Kristina Stern, Stephen Lloyd and Houda Younan of Counsel for their assistance in the case. Sean Burke v Director of Public ProsecutionsThe EDO acted for Tilba environmental activist, Sean Burke, in his criminal appeal against convictions for obstruction and intimidation. Mr Burke participated in a peaceful protest blockade in the Bodalla State Forest and was charged and convicted with obstructing the path of loggers and intimidation under section 545B(1)(i) of the Crimes Act 1900. Mr Burke's intimidation conviction has serious implications for environmental protestors across NSW. The conviction invokes an obscure section of the criminal law which was traditionally used against trade unionists picketing workplaces. It appears that this was the first time the section had been used against an environmental protester. The section extends the common understanding of "intimidation" to causing a reasonable apprehension of injury to another person's occupation or source of income. In this case, the facts indicated that the protest blockade was not intimidatory in any sense. Mr Burke's appeal was heard in the District Court before Justice Blanch on 28 September 2009. Justice Blanch found that there was no evidence which could support a conviction for intimidation. Mr Burke's appeal was allowed and the intimidation conviction was quashed. Specialist criminal law barrister, Ken Averre, appeared for Mr Burke in the appeal . The EDO would like to thank Mr Averre for his work in this matter.
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Case Note [PDF 128 KB] |
Gwandalan Summerland Point Action Group Inc v Minister for Planning
On 2 September 2008 the Minister for Planning approved a Concept Plan for an extensive subdivision development by Rosecorp on development sites at Catherine Hill Bay and Gwandalan. The EDO acted for the Gwandalan Summerland Point Action Group, which commenced legal proceedings in the Land and Environment Court challenging the approval.
Prior to lodgement of the Concept Plan application, the Gwandalan and Catherine Hill Bay sites were zoned for environmental protection, and the Department of Planning had ranked these sites as the lowest priority for urban release. The sites contain significant populations of the threatened plant species Tetratheca juncea, and have important scenic and heritage values.
However in 2006 a Memorandum of Understanding (MOU) was signed between Rosecorp and the former Minister for Planning (Frank Sartor) under which the former Minister agreed to facilitate development of these sites for residential purposes. In exchange, Rosecorp was to dedicate a 300 hectare parcel of land at Catherine Hill Bay for a conservation reserve. Following the signing of the MOU (which was also formalised in a Deed), the former Minister agreed to consider a Concept Plan proposal for the sites under Part 3A of the Environmental Planning and Assessment Act 1979. Approval was subsequently granted.
Gwandalan Summerland Point Action Group challenged the Concept Plan approval on two grounds. The first ground alleged that there was a reasonable apprehension of bias in the decision-making process by the former Minister. The second ground alleged that the former Minister had illegally taken into account the terms of the MOU and the Deed he signed with Rosecorp.
The matter was heard on 9, 10 and 11 June 2009 before Justice Lloyd of the Land and Environment Court. Justice Lloyd delivered his judgment on 31 August 2009, finding that both the concept plan for approval of residential development at Catherine Hill Bay, and the Project Approval for the development at Gwandalan were void and of no effect.
The EDO acknowledges and thanks Jeremy Kirk and Gerald Ng of Counsel for their appearance and contribution to the case.
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Case Summary [PDF 106 KB] |
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"Catho Ruling will cost centres green buffer" reproduced from the Newcastle Herald, 10 Sep 2009 [PDF 574 KB] |
North Coast Environment Council Inc v Department of Environment and Climate Change & Ors
The EDO Northern Rivers acted for the North Coast Environment Council Inc (NCEC).
The NCEC filed an application in the NSW Administrative Decisions Tribunal (ADT) challenging the decision of the Department of Environment and Climate Change (DECC) to refuse NCEC access to information it holds regarding logging approvals on private land (private native forestry property vegetation plans or PNF PVPs).
The NCEC lodged a Freedom of Information Application with DECC seeking information on private logging operations in NSW. The NCEC sought the information in order to independently assess how the relatively new system of regulation over logging on private lands in NSW was being applied.
DECC refused access to the NCEC. DECC claimed that the material sought contains the business affairs and personal affairs of the PNF/PVP landholders. DECC also said that landholders may be subject to trespass, property damage and blockades if the material is released. NCEC believed that DECC did not apply the FOI Act in accordance with the law and that in the public interest the information sought should be released.
Five landholders that conduct private logging operations on their land joined the proceedings. They claimed that their property and commercial interests would be adversely affected if the information held by DECC was released. No evidence to back up or provide any substance to such claims put by DECC or the landholders was provided.
After 18 months and not long before the hearing DECC agreed to release the documents to the NCEC. Therefore the matter has now settled by way of consent orders including that DECC release the information to the NCEC.
Tomsy's Timber Pty Ltd v Clarence Valley Council & Elland Preservation Association Inc
Tomsy's Timbers planned to place a major sawmill development and operation on environmentally significant rural land in the Clarence Valley.
The EDO Northern Rivers acted for the Elland Preservation Organisation Inc (EPO). EPO was concerned about the impacts a proposed major sawmill development would have on the natural rural environment. The development was proposed on environmentally constrained land and at the top of a water course that feeds directly into a significant wetland before feeding into the Orara River.
Clarence Valley Council refused the development application lodged by Tomsy's Timbers (the sawmill company) on three separate occasions on a number of legal and environmental grounds. Further, Clarence Valley Council has a sustainability initiative and Industrial Lands Strategy that when applied concludes that this type of major industrial development should only be considered on lands appropriately zoned industrial. Tomsy's Timbers appealed to the Land and Environment Court challenging Council's refusal.
As the proposal was designated development, EPO joined the proceedings and raised a number of environmental matters that Council was not raising in its case. The main arguments put to the Court by EPO were that the proposal would have an unacceptable impact on water quality and cause water pollution and it would adversely affect threatened species. Further the Environmental Impact Statement prepared by the proponent was substantially inadequate and did not comply with the statutory requirements relating to EIS.
The proceedings were initiated by Tomsy's Timbers in April 2008. After the EPO filed its expert evidence in the matter, only 2 weeks before a 5 day hearing was scheduled, Tomsy's Timbers argued in Court to discontinue the proceedings. EPO had no alternative to settle its objection to the discontinuance, however, it did so on the basis that Tomsy's pay its costs incurred to date.
Friends of Currawong v Minister for Planning & Ors
The EDO commenced proceedings on behalf of Friends of Currawong in NSW Land and Environment Court to prevent the Minister for Planning from approving part of the Currawong development. These proceedings were brought on the grounds that the Environmental Planning and Assessment Act 1979 prohibits the Minister from approving that part of the project.
Friends of Currawong sought a declaration from the Court that the Minister for Planning is prohibited from approving the part of the project that is within the “County Open Space” zoning under the Pittwater Local Environmental Plan 1993. Friends of Currawong was also seeking orders restraining the Minister from approving that part of the project under Part 3A of the Environmental Planning and Assessment Act 1979, and restraining the Director-General of the Department of Planning from preparing a report for the Minister on that part of the project.
The proceedings were discontinued when the Planning Minister, Kristina Keneally, refused the development application for the subdivision and development of Currawong Beach. The site is now to be listed on the State Heritage Register.
Walker v Minister for Planning (LEC judgment)
Walker v Minister for Planning (costs)
Minister for Planning v Walker (Court of Appeal judgment)
Minister for Planning v Walker (costs)
The EDO assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a Concept Plan approval of a development at Sandon Point.
The proposed development was for up to 285 homes and an aged care facility to be built on flood-prone coastal land.
It was argued that the Minister failed to take into consideration the recommendations and findings of a Commission of Inquiry report, and that the Minister failed to apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal.
In a detailed judgment, Justice Biscoe reviewed the principles of ESD as well as US and Australian case law on climate change. He found that the Minister for Planning had failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site.
The case has important implications for how the Minister must deal with major projects under Part 3A of the Environmental Planning and Assessment Act 1979.
The Minister for Planning successfully appealed to the NSW Supreme Court, Court of Appeal. Ms Walker then sought special leave to appeal to the High Court. The application was heard in March 2009. The High Court declined to grant leave on the basis that while there were valid arguments in her favour, they did not think those arguments would succeed if the appeal was heard by the High Court.
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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
In these proceedings the TCA challenged 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 believed that, in this case, biodiversity certification was granted prematurely and based on inadequate information. The plan would 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 would 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 conferred biodiversity certification on the area within the Growth Centres SEPP covered by the original order. This meant that the Growth Centres SEPP would have the benefit of biodiversity certification, even if the original biodiversity order was 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
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.
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Media - Northern Star 27 July 2009 |
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Applicant's Points of Claim [PDF 306 KB] |
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Class 4 Application [PDF 193 KB] |
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
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] |
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (judgment)
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (substituted service)
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (service outside of jurisdiction)
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (leave to appeal)
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (service outside of jurisdiction)
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (service outside of jurisdiction)
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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
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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
Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources & Centennial Hunter Pty Ltd
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
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
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
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
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
 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
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 (judgment)
Cranky Rock Road Action Group Inc v Cowra Shire Council and Ors (costs)
Cranky Rock Road Action Group Inc v Cowra Shire Council and Ors (injunctions and declarations)
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.
The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage and Ors (decision)
The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage and Ors (decision)
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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
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
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
Evans v Maclean Shire Council and Integrated Site Design Pty Ltd (for Primrose Levi Pty Ltd)
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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
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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
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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 (judgment, LEC)
Nature Conservation Council of NSE Inc v the Minister Administering the Water Management Act 2000 (judgment, Court of Appeal)
Nature Conservation Council of NSW v Minister Administering Water Management Act (application for special leave to appeal to the High Court)
Nature Conservation Council of NSW v Minister Administering Water Management Act (pronouncement of orders by consent, High Court)
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”)
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.
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Bruce Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors
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 (Court of Appeal)
Coalcliff community Association v Minister for Urban Affairs and Planning (Land and Environment Court)
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
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 (Court of Appeal)
Timbarra Protection Coalition Inc v Ross Mining NL (Land and Environment Court)
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 Coalition was unsuccessful in the Land and Environment Court but won on appeal 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
Jarasius v Forestry Commission of New South Wales & Ors
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 logging in forests and the assessment of environmental impacts of logging.
Alexander Jonathan Brown v Environmental Protection Authority
Alexander Jonathan Brown v Environmental Protection Authority
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
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
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
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.
Tasmanian Conservation Trust Inc v Minister for Resources and Gunns Ltd
The EDO acted for the Tasmanian Conservation Trust challenging a woodchip export licence granted by the Minister for Resources to Gunns Ltd on 10 June 1994.
The Minister advised that he had also granted "in principle" approval to allow Gunns to export up to 200 000 tonnes of hardwood chips until the end of 1999, subject to the issue of annual export licences. The Minister followed departmental advice that he did not need to designate Gunns under the Environment Protection (Impact of Proposals) Act 1974 as the export proposal did not raise any issues of environmental significance not already taken into account under an earlier EIS on the Tasmanian woodchip industry conducted in 1984.
A key issue which needed to be decided was the question of standing. In order to approach the Court, the Trust needed to be a "person aggrieved" under the Administrative Decisions Judicial Review Act. The Court found that the Trust did have standing, refering to a number of key factors that supported this finding.
The next question was whether the Minister had complied with the law. The Court held that the Minister had not addressed his mind to the issue of whether the proposed action would effect the environment to a significant extent. He had asked himself the wrong question, and only whether the environmental impact of the proposed action was substantially different from that of proposals previously assessed in preparing the 1985 EIS.
The case also challenged the in principle approval. The Court held that the in principle approval was not a decision which the Export Control (Unprocessed Wood) Regulations required or authorised. His Honour held that Gunns may have a legitimate expectation that a licence would not be denied on other grounds and Gunns would be entitled to procedural fairness because of that expectation. However this would not create any other entitlement in Gunns.
Although a loss for the Trust on this point, it was crucial that it be determined. It proves that woodchipping companies in Australia would have no entitlement to compensation if these licences were not renewed.
On 19 December 1994, the Minister for Resources issued a fresh licence for 1995 to Gunns Ltd, prior to the handing down of this judgement. The EDO represented the Trust in a fresh challenge to this new licence, on substantially the same grounds.
North Coast Environment Council Inc v Minister of Resources (No1)
The EDO acted for the North Coast Environment Council (NCEC) in proceedings brought against the Minister for Resources in relation to a three month export woodchip licence issued by the Minister in June 1994 to Sawmillers Exports Pty Limited. The NCEC sought reasons from the Minister under section 13 of the Administrative Decisions Judicial Review Act (ADJR Act) for his decision to issue the licence. Entitlement to reasons was dependant upon the NCEC showing that it was a "person aggrieved" within the meaning of the Act. The only issue raised by the proceedings was therefore whether the NCEC had standing to request reasons for the Minister's decision. His Honour Mr Justice Sackville concluded that the NCEC had standing.
North Coast Environment Council v Minister for Resources and Sawmillers Export Pty Ltd (SEPL) (No 2)
EDO acted for NCEC in challenging a woodchip export licence issued by the Minister for Resources in relation to woodchips derived from the forests of the North Coast of NSW. The case was settled on the day of the hearing when the company (Sawmillers Exports, a subsidiary of Boral Ltd) surrendered its licence and a new licence was issued on the spot by the Federal Minister for Resources. The EDO was successful in recovering its costs.
Australian Conservation Foundation v Minister for Resources
Following the announcement of the Federal Government's decision to reissue a woodchip export licence to Harris-Daishowa on the South Coast of NSW, the EDO wrote to the Minister for Resources in January 1995 requesting written reasons for his decision under section 13 of the Administrative Decisions (Judicial Review) Act , 1977. The AD(JR) Act provides that a reasons should be provided within 28 days of receiving the request.
After the Minister failed to meet his promises to provide the reasons, the EDO commenced proceedings on behalf of the ACF in the Federal Court seeking orders that the Minister provide his reasons forthwith. On the first day that the matter came before the Court, the Minister agreed to provide the reasons and to pay ACF's costs of the proceedings.
