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Past Cases
Armstrong v DPI (Paradise Dam Fisheries Tribunal appeal)Armstrong & Joss v Department of Primary Industries & Burnett Water Pty Ltd [2003] FT 515 EDO Qld acted for lungfish expert Professor Jean Joss and Graeme Armstrong in an appeal to the Fisheries Tribunal regarding a potential preliminary approval for a fishway for Paradise Dam on the Burnett River. Our clients had been denied information about the status of the approval. The appeal clarified that the fishway design had not yet been finalised nor a permit granted, so there was no capacity to appeal an approval. The appeal was successfully settled with a commitment given that Professor Joss would be given opportunity to be briefed on the design of the fishway. Solicitors: Jo-Anne Bragg, Larissa Waters Booth v Bosworth (Flying-fox case 1) Booth v Bosworth [2000] FCA 1878 In the first legal action ever taken under Australia’s current federal environment laws, EDO Qld acted for conservationist Carol Booth in a case that halted the large-scale electrocution of spectacled flying-foxes on a lychee property in north Queensland and led to the end of government-permitted electrocution of flying-foxes. This case in the Federal Court under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) demonstrated the great value of third party rights, defined various concepts in the EPBC Act and demonstrated that the Act could be used to regulate actions taken outside a World Heritage Area that were likely to have a significant impact on its values. Dr Booth provided evidence that during November-December 2000 lychee farmers Rohan and Frances Bosworth electrocuted thousands of spectacled flying-foxes on a 6.4 km long aerial electric grid erected to protect their 60 hectare lychee crop. When the killings were first detected and reported to Queensland’s Environmental Protection Agency, the Bosworths did not hold a permit to kill flying-foxes. The Queensland Government declined to prosecute them, and instead issued a permit to kill 500 flying-foxes, a number which was exceeded within two days. The Federal Government also declined to take action. An initial application to the Federal Court for an interim injunction was unsuccessful due to the short time remaining in the lychee harvest, and the potential for unrecoverable economic losses by the growers. In the main trial, Justice Branson found that use of the electric grid was likely to have a significant impact on the values of the Wet Tropics World Heritage Area and granted an injunction restraining further operation. This remains in force unless approval for operation of the grid is obtained under the EPBC Act. (An application by Mr Bosworth in 2002 to operate the grid to kill 5,500 flying-foxes was refused by the Federal Environment Minister, the first ever refusal under the Act.) The Court found that an estimated 18,000 spectacled flying-foxes were electrocuted during the 2000 lychee season, and that continued operation of the grid would cause the species to become endangered within five years. This decline would undermine the capacity of the spectacled flying-fox to contribute to the genetic and biological diversity of the World Heritage Area. Justice Branson held that the loss of a single species could constitute a significant impact on the world heritage values of a World Heritage property. In 2004, Rohan Bosworth appealed the decision on the basis that the EPBC Act could not regulate freehold land and amounted to an acquisition of land by the Commonwealth for which just terms had not been paid. He also alleged that the original hearing had been an abuse of process of the Court. Justice Kiefel found that there was no reasonable basis for the appeal and struck out the application. In 2005 the Full Federal Court refused an appeal by Mr Bosworth against Justice Kiefel’s decision. Costs in the main hearing and appeals were awarded to our client. Counsel: Chris McGrath, Dr Ted Christie, Stephen Keim Attachments/links: http://www.envlaw.com.au/ffox.html Booth v Frippery (Flying-fox case 3) Booth v. Frippery Pty Ltd and Ors [2005] QPEC 95 EDO Qld acted for Carol Booth in the first legal action using new third party rights in Queensland’s Nature Conservation Act 1992, achieving dismantlement of electric grids used to illegally kill flying-foxes on a lychee farm. Involving a trial, an appeal, a second trial, an application for appeal, a contempt trial and an attempted suit in the Federal Court against EDO and our client, this case demonstrated that success in court can require considerable persistence. The appeal resulted in legal definition of a key concept in the Nature Conservation Act. Dr Booth and a colleague obtained evidence that lychee growers Merv and Pam Thomas of Mutarnee, north of Townsville, were electrocuting black flying-foxes on an electric grid without a permit. After the Queensland Government failed to prosecute the farmers, Dr Booth sought orders in the Planning and Environment Court to restrain operation of the electric grid system, require that it be dismantled and require that a financial contribution be made to support rehabilitation of flying-foxes. Although the grower admitted to electrocuting tens of thousands of black flying-foxes over many years without authorisation, Judge Pack dismissed the application. Rejecting the evidence of an expert witness, he found that a recent version of the electric grid was non-lethal. He found that any ‘take’ (kill, harm etc) by the farmers was lawful because their activity was not directed towards the taking (it was incidental to crop protection) and could not reasonably have been avoided. This decision was appealed in Queensland’s Court of Appeal, with the Environmental Protection Agency accepted as an additional party to the appeal. The appeal issue was whether the operation of the electric grids was “directed towards” crop protection as Judge Pack decided, or “directed towards” taking of wildlife, as barristers for Dr Booth and the Environmental Protection Agency argued. Judges Williams, Holmes and McMurdo unanimously upheld the appeal and ordered that the case be reheard before a different judge. Costs were awarded to Dr Booth. In the second trial in 2007, Judge Robin found that the Thomases had illegally killed "thousands" of flying-foxes, and were likely to continue to kill or injure "substantial" numbers, despite their claims that the grids were non-lethal. He ordered that they stop using the grids and dismantle them within two months. An application by the fruit growers for leave to appeal against this decision was dismissed for failing to comply with the Court of Appeal's directions on the conduct of the application. In 2008 our client launched contempt proceedings against the Thomases because they had not dismantled the grids as ordered by the Court. They were found guilty of contempt and fined $5000. Also in 2008, Mr and Mrs Thomas applied to the Federal Court to restrain Dr Booth and her EDO Qld solicitors from undertaking litigation against them. They also sought $1 million in damages they alleged they suffered due to the litigation. The EDO solicitors applied to have the proceedings struck-out on the basis that they were frivolous and vexatious and an abuse of process. At the hearing of the strike-out application Mr and Mrs Thomas sought to discontinue the proceedings. Judge Collier allowed the proceedings to be discontinued but awarded costs on an indemnity basis. Counsel: Dr Chris McGrath, Stephen Keim SC Attachments/links: http://www.envlaw.com.au/frippery.html Booth v Yardley (Flying-fox case 4) Booth v. Yardley [2006] QPEC 116 EDO Qld acted for conservationist Carol Booth in an unusual case involving admissions by a fruit grower in the media that he had been electrocuting flying-foxes in defiance of a Queensland Government ban on this method of crop protection. Our client succeeded in obtaining a court order for the dismantlement of the electric grids, although it took two contempt proceedings to achieve the outcome. In early 2006 Dick Yardley, a lychee grower from Mirriwinni in North Queensland, claimed in two media interviews that he had electrocuted 1100 spectacled flying-foxes since 2001 and that he did not believe the government’s decision to ban the use of electric grids for crop protection was valid. In the absence of a government prosecution, Dr Booth applied to the Planning and Environment Court (under the Nature Conservation Act 1992) for orders against Dick and Antje Yardley to restrain their use of the electric grids, to require dismantlement of the grids and to require a financial contribution by the Yardleys for the rehabilitiation of flying-foxes. An interim enforcement order – the first issued under the Nature Conservation Act – was granted by Judge Rackemann until the full hearing. In the full hearing, Judge Wilson found that the Yardleys had breached the law in operating their electric grids and that they were likely to continue using the grids unless restrained. He ordered that the grids be dismantled within three months. When the Yardleys failed to dismantle the grids, our client brought proceedings for contempt, in 2007 and again in 2008. After the second contempt proceedings were initiated, the grids were dismantled. The Yardleys were fined $5000. Counsel: Dr Chris McGrath Attachments/links: http://www.envlaw.com.au/yardley.html
Friends of Springbrook Alliance v Gold Coast City Council (Springbrook Cabins planning appeal) Friends of Springbrook Alliance Incorporated & Ors v Council of the City of Gold Coast & Anor [2003] QPEC 014 EDO Qld acted for environmentalists and residents to challenge a tourist development approved for an ecologically sensitive part of the Gold Coast Hinterland near World Heritage-listed Springbrook National Park. Although the appeal was dismissed, it led to substantial improvements in the proposed development. The case demonstrated the value of legal action as a way of improving development outcomes because of opportunities afforded to obtain information and for negotiation. EDO Qld’s clients, the Gold Coast and Hinterland Environment Council (GECKO), the Friends of Springbrook Alliance, and local residents Ken and Jeanette O’Shea, challenged an approval by the Gold Coast City Council in the Planning and Environment Court under the Integrated Planning Act 1997. The City Council had approved the construction of tourist cabins in a site designated under the Springbrook Structure Plan as Nature Conservation Area, which did not permit the erection of buildings or structures. A site inspection by our clients’ expert witness found numerous rare and threatened plant species on the proposed cabin sites not identified by the developer or Council. In response, the developer moved the location of the development to an already cleared area, but still within the Nature Conservation Area. He also upgraded the wastewater system and moved the disposal area out of the rainforest. Although Judge Newton dismissed the appeal, substantial improvements to the development were achieved, including relocation of cabins to a less sensitive area, protection of rare and threatened species, reduction in cabin size and improvement in wastewater disposal. These improvements were included as conditions to the development approved by the Court. After the court case, the site was purchased by the State Government with the long-term aim of incorporating it into the Springbrook National Park. Counsel: Paul Howorth Hemmant & Tingalpa Action Group v DPI (Marine plants fisheries appeal)Hemmant and Tingalpa Action Group and WPSQ Bayside Branch Inc. v Department of Primary Industries and Master Butchers Limited FT464- 2002 EDO Qld acted for the Hemmant and Tingalpa Action Group in a successful appeal in the Fisheries Tribunal against a permit for destruction of marine plants. However, the decision was then undermined by the Tribunal deciding that a permit should nonetheless be granted. The appeal was against a decision by the Department of Primary Industries to grant Master Butchers Limited a permit under the Fisheries Act 1994 to remove approximately 1.2 hectares of marine plants (mainly saltwater couch) on its proposed industrial estate at Hemmant. The Tribunal found that the marine plant permit was invalid because it failed to identify with certainty and particularity the area from which marine plants were permitted to be removed. The Tribunal also found that the DPI had misconstrued the expressions “marine plant” and “tidal land” as defined in the Act. They upheld the appeal against DPI. However, the Tribunal then decided against our clients that the DPI should grant to Master Butchers a new permit to remove marine plants, on the basis that development and remediation of the partly contaminated site was the best option. The Tribunal was not convinced that the risk to fisheries resources from the removal of marine plants from this site was significant. However, the site was not developed. In November 2008 Daryl Evans of the Hemmant and Tingalpa Wetlands Conservation Group began a planning appeal against a fresh development application for the site and adjacent land. Daryl is still negotiating for the protection of some of its most significant waterways and wetlands. Counsel: Steve Keliher HSI v Minister for Environment (Flying-fox case 2)Humane Society International Inc v Minister for the Environment & Heritage [2003] FCA 64 EDO Qld acted for Humane Society International in a successful case to ensure that the Federal Environment Minister did not abrogate his responsibility under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to assess proposed actions likely to have a significant impact on a matter of national environmental significance. HSI sought declarations and orders from the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 about the Minister's agreement with three state governments to allow fruit growers to shoot up to 1.5% of the agreed populations of grey-headed and spectacled flying-foxes without approval under the EPBC Act. The Minister announced in late 2002 “that a person who holds a State permit or licence to take Grey-headed Flying-foxes during the 2002-2003 fruit season does not need to refer the taking under the Act". The agreement was published in Supplements to the Administrative Guidelines on Significance for Flying-foxes, under the EPBC Act. Finding in favour of HSI, Justice Kiefel declared that the Supplement Guidelines purported to give exemptions from that Act that were not authorised by law. However, the Court declined to grant a requested order of mandamus directing the Minister to exercise his statutory powers under the Act according to law and without reference to the agreements and the statements made in the Guidelines. Subsequently, the Environment Minister amended the Guidelines on Significance and published a clarification to avoid any growers being misled by the unauthorised exemption contained in the original Guidelines. Counsel: Stephen Keim, Chris McGrath Attachments/links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2003/64.html Jimbelung v Beaudesert Shire Council (Tamborine planning appeal) Jimbelung Pty Ltd v. Beaudesert Shire Council & Ors [2005] QPEC 25 EDO Qld acted for Friends of Mount Tamborine Association to argue that an appeal by a developer against a refusal for a development on Mount Tamborine should not be permitted to proceed due to a lapse of years since the appeal was initiated. Although the Court ruled the appeal could proceed, some court costs were awarded to our client. The Association was one of three community associations and 47 individuals to join Beaudesert Shire Council as a party to an appeal by Jimbelung Pty Ltd of Council’s 1998 refusal of its application to build 66 units on Mount Tamborine. The subject land is next to a national park, has conservation value, is steeply sloping and has bushfire issues. The developer entered negotiations with the Council and took no steps in Court for almost seven years. When an application was made for directions in 2005, the Association successful argued that a formal order of the Court was required to continue with the case. The Association argued in a subsequent hearing that the appeal should be struck out because of the prejudice the delay had caused the co-respondents, and the community expectation for increased environmental protection of the site (as reflected in the then draft Southeast Queensland Regional Plan) compared with 1998 environmental rules. Judge Wilson decided the appeal should be allowed to proceed, but that the developers must pay our client’s costs of legal preparation and court time arguing about the whether a formal order was needed to proceed with the appeal. Counsel: Steve Keliher Attachments/links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QPEC/2005/25.html Kirkham v Brisbane City Council (Yeronga Park planning appeal)Kirkham v. Brisbane City Council [2007] QPEC 106 EDO Qld represented Ruth Woods in a successful planning appeal run jointly with other objectors to a development approval for a football field in a Brisbane park. This case is an example of what can be achieved by a motivated and well-organised community group. In 2006 Brisbane City Council approved an application by the Souths Rugby Club to build a second rugby union field in Yeronga Memorial Park. Ruth Woods, a resident in Yeronga, along with members of the community group Friends of Yeronga Memorial Park, challenged the approval in the Planning and Environment Court under the Integrated Planning Act 1997. The proposed football field was adjacent to a line of memorial fig trees planted in 1917 to commemorate local soldiers who did not return from World War I, and would affect both the trees and community use of the park. Judge Brabazon found that the proposed development breached planning controls, and that alterations to the park and its proposed use would damage the landscape and the cultural heritage of the park. He set aside Council’s approval for the development. Counsel: Michael Labone, Rod Litster Attachments/links: http://corrigan.austlii.edu.au/au/cases/qld/QPEC/2007/106.html Mirbelia Street Action Group v Brisbane City Council (Mirbelia bushland planning appeal) Cordiner v Brisbane City Council and Greymouth Pty Ltd BD 6032 of 2001 EDO Qld acted for a local community group to appeal Council approval for a residential subdivision that would destroy urban bushland. While the appeal was unsuccessful, it did achieve substantially improved conditions to protect vegetation and water quality. In the first case, Ruth Cordiner, a member of the Mirbelia Street Action Group, appealed to the Planning and Environment Court under the Integrated Planning Act 1997 against the approval for a 32 lot residential subdivision on about 6 hectares of bushland in Kenmore, Brisbane. The case was adjourned when our client’s barrister pointed out a potentially serious defect in the two applications for the development: that each was possibly 'piecemeal' as neither could stand alone without the other. A new development application was subsequently made. When Brisbane City Council approved the new application for a 27 lot development, the Mirbelia Street Action Group appealed in the Planning and Environment Court. Over a six day hearing the Action Group argued that the land was part of the Green Space System under the old Brisbane City town plan and conflicted with the Strategic Plan, and that it contained an endangered regional ecosystem. However, Judge Robin found that despite having some Green Space values, the land was not Green Space and that therefore the development could proceed, subject to certain conditions to better protect the site’s values. He invited proposals for conditions from the Action Group. The Action Group negotiated extra conditions to be placed on the development, which were accepted by Judge Robin, to protect significant trees, to establish more building location envelopes to restrict building, and to expand vegetation protection areas. Counsel: Chris McGrath Attachments/links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QPEC/2003/43.html Norman Creek Catchment Coordinating Committee v Brisbane City Council (Mott Creek corridor appeal)Norman Creek Catchment Coordinating Committee Inc. v. Brisbane City Council & Ray Sweeney EDO Qld acted for a community group to challenge the approval by Brisbane City Council of a townhouse development with limited setback from Mott Creek, a tributary of Norman Creek. The Norman Creek Catchment Coordinating Committee had been rehabilitating the riparian vegetation. In an appeal to the Planning and Environment Court under the Integrated Planning Act 1997, the Committee contended that the development infringed on an environmentally significant area of the adjoining waterway and its buffer zone and was contrary to the Council’s strategic plan. Although the appeal was dismissed by Judge Skoien, the Committee was successful in obtaining a greater setback and an improved landscape plan for the development. Counsel: Stephen Keliher Queensland Conservation Council v Minister for Environment (Nathan Dam case) Queensland Conservation Council Inc & WWF Australia v Minister for the Environment and Heritage [2003] FCA 1463 EDO Qld acted for the Queensland Conservation Council (QCC) and WWF Australia in a landmark case that compelled the Federal Environment Minister to consider the indirect impacts of a proposed dam. The case has considerably broadened the scope of federal environmental impact assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). In 2003 the Environment Minister had decided that a large 880,000 megalitre dam proposed for the Dawson River in central Queensland should be assessed under the EPBC Act, but limited the assessment to the impacts of the construction and operation of the dam. He excluded from assessment the indirect impacts arising from agricultural use of the water, such as pollution of the Great Barrier Reef World Heritage Area into which the Dawson River flowed. QCC and WWF sought judicial review of the Minister’s decision under the AdministrativeDecisions(JudicialReview)Act 1977, arguing that the impacts of agriculture enabled by the dam should also be considered. Justice Kiefel of the Federal Court found that the Minister should have considered these wider impacts in his decision. She held that environmental assessment under the EPBC Act should extend to the "whole, cumulated and continuing effect" of the activity, including the impacts of activities of third parties. The Environment Minister appealed the decision of Justice Kiefel, but the Full Federal Court unanimously dismissed it and found that the Minister was required to consider all adverse influences or effects, no matter who was responsible for the action. They ordered the Minister to pay QCC and WWF’s legal costs. Counsel: Stephen Keim, Chris McGrath Attachments/links: http://www.envlaw.com.au/nathan.html Queensland Conservation Council v Xstrata Coal Queensland (Xstrata climate change case) Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33 In one of the first Australian cases addressing climate change, EDO Qld acted for Queensland Conservation Council in a challenge to the expansion of a large coal mine operated by Xstrata Coal. An initial loss in the Land and Resources Tribunal was successfully appealed, but the Queensland Government enacted special legislation to preempt the retrial. In 2005, Xstrata Coal applied under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 to expand its Newlands coal mine in Central Queensland, west of Mackay. The company intended to extract 28.5Mt of coal over a 15 year period from the new mine area. The mining, transport and use of this coal for electricity or steel production would emit an estimated 84 Mt of carbon dioxide equivalent. QCC objected to the lease expansion, arguing that because the greenhouse gas emissions resulting from the operation would contribute significantly to climate change, the lease expansion should not be granted unless Xstrata Coal was required to avoid, reduce or offset those emissions. President Koppenol of the Land and Resources Tribunal dismissed QCC’s objection and recommended the mine be approved without any conditions regarding greenhouse gas emissions. He relied in part on material denying the validity of climate change science that was not presented in evidence, and came to his decision without informing the parties that he had formed a view contrary to that presented in evidence (climate change science had been accepted by both parties to the case). QCC successfully appealed the decision in the Queensland Court of Appeal. The Appeal Court ruled that QCC had been denied natural justice because it had not been given the opportunity to address the material about climate change relied on by the Tribunal for its decision. The Appeal Court also found that QCC had been wrongly denied leave to amend its application. It ordered a retrial in the Land Court (which had subsumed the Tribunal). However, four days after the ruling the Queensland Government passed special legislation (Mining and Other Legislation Amendment Act 2007) validating the approval of the mine lease. This had the effect of preventing the case from being reheard. Counsel: Stephen Keim SC, Dr Chris McGrath Attachments/links: http://www.envlaw.com.au/newlands.html Save Our Riverfront Bushland v Brisbane City Council (Riverfront bushland planning appeal)Wingate Properties P/L & Anor v BCC & Ors [2001] QPE 005 Represented by EDO Qld, a local environment group successfully overturned an approval by Brisbane City Council for residential development of bushland at Seventeen Mile Rocks in Brisbane. Save Our Riverfront Bushland (SORB) appealed in the Planning and Environment Court under the Integrated Planning Act 1997 the Council’s approval for up to 90 residential allotments proposed by Wingate Developments Pty Ltd and Queensland Cement Limited. The 7 hectares proposed for development included a bushland ridge designated non-urban in the 1987 Town Plan in a category for "natural or semi-natural areas having high value for habitat conservation, landscape protection or waterway protection". Judge Brabazon found that its values were important and should be protected as provided in the Town Plan: “It is the last undeveloped ridgeline in the centenary suburbs. Its importance is primarily because of its landscape value, and because of the recreational value it has.” He allowed SORB's appeal and overturned the development approval. Counsel: Steve Keliher Attachments/links: http://www.sorb.org.au/qcl/index.htm Schneiders v Queensland Government (Fraser Island dingo case)Schneiders v Queensland [2001] FCA 553 EDO acted for conservationist Lyndon Schneiders to seek an injunction to prevent the Queensland Government from culling a substantial proportion of the dingo population on Fraser Island. The case was unsuccessful, but likely to have been instrumental in persuading the Queensland Government to cease the cull and carry out a review. The Queensland Government had ordered that 30 dingos be killed after a young boy was killed and another injured by dingos on Fraser Island in 2001. Mr Schneiders, along with an Elder of the Dalungbara People, sought an interim injunction from the Federal Court under the Environment Protection and Biodiversity Conservation Act 1999 to stop the cull until a full hearing could be conducted. It was argued that killing 30 dingos (of an estimated population of 100-200) was likely to have a significant impact on the world heritage values of Fraser Island. Judge Dowsett agreed there was an arguable case, but considered that public safety issues prevailed, particularly because the government had given an assurance that the culling would stop the following day. No costs were sought against our client. Counsel: Chris McGrath Attachments/links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2001/553.html Stahira v Redland Shire Council (Wellington Point planning appeal)Stariha v. Redland Shire Council & WPSQ Bayside [2002] QPEC 39 EDO Qld acted for Wildlife Preservation Society of Queensland Bayside Branch in a successful case that prevented a residential estate being built on koala habitat beside a wetland at Wellington Point. Wildlife Bayside joined as a co-respondent to the developer’s appeal. Joining as a co-respondent provides the opportunity for a community group to present evidence to the Court and keep pressure on the respondent (the local government in this case) to run a strong case. WPSQ Bayside joined the Redland Shire Council in resisting the appeal by developer Stariha of the Council’s refusal of their development proposal. The proposal was for development of close to 20 hectares of land covering 144 lots, including some for multiple dwellings. The appeal was heard over six days in the Planning and Environment Court under the Integrated Planning Act 1997. Expert evidence provided by WPSQ Bayside and the Council demonstrated that the proposed residential estate would have detrimental impacts on the onsite koala habitat and the adjacent significant wetland. Judge Wilson determined that the proposed development would adversely affect the “valuable” koala habitat of the site and conflicted with the Council’s Strategic Plan and State Planning Policy No. 1 of 1997 (Conservation of Koalas in the Koala Coast). He dismissed the appeal. Counsel: Steve Keliher Attachments/links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QPEC/2002/39.html The Wilderness Society v Minister for Environment (Gunns pulp mill case 1)The Wilderness Society Inc. v Minister for Environment and Heritage ACD 12 of 2005 EDO Qld acted for The Wilderness Society (TWS) to challenge a decision by the Federal Environment Minister about matters that should be considered in his assessment of a proposed pulp mill in Tasmania. The case was discontinued when Gunns withdrew their application. In 2004, Tasmanian logging company Gunns Ltd referred to the Minister for Environment and Heritage its proposal to build and operate a pulp mill. The Minister decided it was a controlled action requiring assessment. The mill would source its timber from plantation and native forests in accordance with the guidelines set out in the Tasmanian Regional Forests Agreement (TRFA). The Environment Protection and Biodiversity Conservation Act 1999 exempts actions conducted in accordance with an RFA from the Act. However, the proposed 30 year operation of the pulp mill would extend 20 years beyond the 2017 expiry of the TRFA. In an important test case for the EPBC Act, TWS applied for judicial review in the Federal Court of the Minister’s decision to ignore likely impacts of logging to feed the proposed pulp mill on a World Heritage Area and on threatened species after the RFA expires in 2017. The Minister had dismissed these impacts as “speculative”. A directions hearing was held and the case set down for hearing in October 2005. However, two months before the hearing, Gunns Ltd withdrew their referral and the case had to be discontinued. Counsel: Steven Keim SC Wide Bay Burnett Conservation Council v Burnett Water (Paradise Dam case) Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900 Represented by EDO Qld, the Wide Bay Burnett Conservation Council (WBBCC) sought to compel Burnett Water, the owner and operator of the Paradise Dam on the Burnett River, to abide by a condition of its approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) relevant to lungfish. WBBCC sought a declaration under the Federal Court of Australia Act 1976 and an injunction under the EPBC Act to restrain an alleged contravention by Burnett Water. This was the first case to focus on compliance with approval conditions under the EPBC Act. WBBCC received a grant of Commonwealth public interest test case funding, the first given for an environmental case in over a decade, in recognition of the important public interest elements in the case. Paradise Dam was approved by the Federal Environment Minister in 2002, with a condition added in 2003 requiring Burnett Water to install a fish transfer device on the dam ‘suitable for lungfish’ and to commence operation of the fishway when the dam became operational. The Burnett River contains one of only two endemic populations of the Australian lungfish, a species listed as vulnerable under the EPBC Act. Burnett Water Pty Ltd installed upstream and downstream fishways on the dam but WBBCC alleged these were not suitable for lungfish. Burnett Water applied for a delay in the trial while a compliance audit was conducted by the Federal Environment Department but Judge Logan dismissed the application deciding that there were ‘public interests at large in the present proceeding other than a potential embarrassment of Burnett Water and the administration of justice in relation to any civil penalty or criminal proceedings.’ The trail was listed for 4 weeks starting in September 2009 but on the first day of the hearing was adjourned until November 2009 after Burnett Water applied to the Federal Environment Minister to amend the condition on which the case is based. The Minister refused to amend the condition. The trial was held over two weeks in November 2009 and a week in February 2010. On 4 March 2011, Justice Logan dismissed WBBCC’s application, finding that the fishway was suitable for lungfish. Counsel: Ken Fleming QC, Penny Hay, Dr Chris McGrath Attachments/links: http://www.envlaw.com.au/paradise.html WPSQ Bayside v Redland Shire Council (Redland koala planning appeal)The Wildlife Preservation Society of Queensland Bayside Branch (Qld) Inc v. Redland Shire Council & Anor [2007] QPEC 1 In a case that protected important koala habitat in Southeast Queensland, EDO Qld acted for the Wildlife Preservation Society of Queensland Bayside Branch to challenge approval of a residential subdivision. WPSQ Bayside Branch appealed an approval and a preliminary approval by Redland Shire Council, in the Planning and Environment Court under the Integrated Planning Act 1997. The approved subdivision was for 94 lots and the preliminary approval for further lots in another part of the 69 hectare property. The approvals were given despite the land being zoned mostly rural non-urban, special protection, greenspace and conservation under relevant town plans and other major habitat” and “Koala Sustainability Area” under state laws. The property was habitat for one of the highest densities of koalas in Redland Shire. This matter was settled without going to hearing. While our client remained concerned about the impacts of the development, substantial improvements were negotiated with the developer. These included designation of more than 60% of the site for conservation purposes, protection of some additional important koala trees and fencing and other features to protect koalas. Judge Robin congratulated the parties “for resolving what otherwise would have been a very lengthy and costly appeal”. Counsel: Steve Keliher Attachments/links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QPEC/2007/16.html WPSQ Proserpine/Whitsunday v Minister for Environment (Whitsunday climate change case)Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment & Heritage [2006] FCA 736 Represented by EDO-NQ, with EDO Qld acting as town agents, an environment group brought the first legal challenge against the federal government for failing to consider the effects of greenhouse gas emissions on the environment, when it approved two large coal mines. The dismissal of this case highlights the need for law reform to require that greenhouse gas emissions are assessed under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) The Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc (Wildlife Whitsunday) sought judicial review in the Federal Court of the Federal Environment Minister’s approvals for mining development by QCoal Pty Ltd (Sonoma mine) and Bowen Central Coal Management Pty Ltd (Isaac Plains mine). The Minister had decided that neither were controlled actions and no conditions were imposed to reduce or off-set their greenhouse gas emissions. These two mines in the Bowen basin were intended to produce 48 million tonnes of coal over 15 years. The mining, transport and use of this coal would produce a total of 121-161 Mt of carbon dioxide equivalent over the 15 years, equivalent to about 25% of Australia's greenhouse gas emissions in 2003. The Statement of Reasons by the delegate for the decision did not address greenhouse gas emissions, but in an affidavit filed two weeks prior to the trial the delegate claimed he had considered the issue in his decision. He said he had concluded that when judged against the scale of past, present and future global emissions, the greenhouse emissions from the mines would not be measurable or identifiable and therefore would not significantly impact on matters of national environmental significance. Wildlife Whitsunday argued that the delegate’s reasoning was “atomistic” and that the question of significance should be addressed by considering whether the emissions were significant in a national rather than international context. Justice Dowsett dismissed the application and found the delegate acted lawfully in finding no link between the emissions and any specific damage to Australia's environment. Counsel: Stephen Keim SC, Dr Chris McGrath Attachments/links: http://www.envlaw.com.au/whitsunday.html If you want to provide feedback on EDO services, please send us an email. |
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