EDO NSW - 30 Highlights over 30 Years
The Environmental Defenders Office (now EDO NSW) began with a single lawyer working from a spare table in the offices of solicitor Bruce Woolf.
From humble beginnings, we have evolved into a multidisciplinary legal office that assists thousands of people with environment and planning law problems each year. In our 30 years we have helped communities achieve some remarkable results, often against the odds, and made a significant contribution to the growing field of public interest environmental law.
1985 – EDO NSW begins operations
EDO NSW was conceived by a small group of lawyers who wanted to establish a legal service with the objective to ‘provide legal assistance and undertake research regarding the conservation of the built or natural environment and to promote community education programmes in matters relating to environmental law’.
A single lawyer, Brian Preston, was engaged to take on this role and his services were instantly in demand.
By the night of the official opening of the office on 30 May 1985, the EDO had responded to 16 inquiries, and had opened 12 files, of which 5 were litigious (required legal action in court).
- David Robinson, EDO NSW Solicitor 1989-1993
Justice Murray Wilcox spoke at the opening of the office. He said:
The other side will normally be an agency or government or a major developer, or both, with access to what seems like almost unlimited funds… And that means there will always be a David and Goliath element in these contests. One can only say that the responsibility is therefore greater for those who are representing David to make sure their personal professional performance is no less.
1989 – Forestry case sets benchmark for environmental assessments
Throughout the ‘80s and ‘90s, the logging of native forests was one of the biggest environmental issues facing the State. In a high profile case, we assisted Wendy Jarasius to obtain an injunction to prevent the NSW Forestry Commission from logging old-growth eucalypt forests near Eden. The basis for the challenge was a failure by the Forestry Commission to properly assess the environmental impacts of the logging by undertaking an environmental impact statement (EIS). The Land and Environment Court found that the logging would have a significant impact on the environment and that therefore the law required the Forestry Commission to prepare an EIS.
The Forestry Commission went on to prepare an EIS and further litigation sought to test whether that EIS met the standard set by the law. Ultimately, the logging was allowed to proceed but the cases set an important benchmark for future environmental assessments, both in terms of when an EIS is required and the standard that it must meet.
1990 – First dedicated Education role
From the outset, community education was a fundamental aspect of our work and was initially undertaken by solicitors. In 1990, we were able to employ our first staff member whose role was dedicated to community education. The key objective of our Outreach Program is to empower the community to protect the environment through law.
Today, we employ 3 dedicated Outreach Solicitors whose role is to explain how the community can effectively participate in government decisions on development and how to use the law to protect the environment.
1991 – Launch of the International Program
We initiated our International Program by helping the Temotu Province of Solomon Islands to redraft its environmental protection ordinance which sought to regulate the export of endangered species. Since that time, we have worked extensively throughout the South Pacific, providing mentoring, advice and support to environmental lawyers across the Pacific. Working with local lawyers, we have helped local traditional owners save 38,000 hectares of rainforest in Papua New Guinea and developed a protected areas toolkit in Solomon Islands to provide communities with a step by step guide to establishing protected areas. In Fiji, we are working with partners to create sustainable inshore fisheries.
1993 – The Mushroom Composters case
We acted for Mr Peter Foster, who represented the Ebenezer Concerned Residents Committee. Proceedings were brought to stop odours coming from a facility which composts poultry manure, straw and other ingredients by letting them rot. The compost is then used for growing mushrooms. The odours were so bad that children at the local school were sometimes ill. People had to live with their doors and windows closed even in mid-summer.
The proceedings were successful. In 1993 an injunction was granted, although it was
suspended for 12 months to enable the company to relocate its operations. Two years later, the company was still operating in breach of the court order. Foster brought proceedings for contempt of court. Foster led evidence from 35 local residents that the odours continued and that the company made $230,000 profit while operating in contempt.
The Court imposed a fine of $80,000, together with $8,000 per week for each week the company remained in contempt. While not as much as the profit made by the company, this was by far the largest fine imposed by the Court.
A second set of contempt proceedings brought by Foster were settled on the provision that the company stop its operations immediately and pay our client’s legal costs.
1994 – The Tasmanian woodchip case
One of the greatest causes of environmental damage in Australia at this time was woodchipping of virgin native forest. Over five million tons of woodchips were exported each year from Australia.
In 1994 the Commonwealth Minister for Resources gave approval for a new licence to export woodchips from Tasmania. EDO NSW acted for the Tasmanian Conservation Trust, the peak group conservation organization in Tasmania, to challenge the approval.
Commonwealth environmental assessment laws at the time required the Resources Minister to refer the matter to the Department of Environment, which would then decide whether an environmental approval is required. This case was part of a campaign to institute change in these laws.
The Commonwealth had conducted a general environmental assessment of woodchipping in the State of Tasmania in 1985. This encompassed the activities of three woodchipping companies but not the new exporter. The Resources Minister considered that the export of woodchips was a matter which had already been assessed as part of this 1985 assessment. He considered that he was therefore under no obligation to refer the matter to the Minister for Environment. This was despite three letters of advice from the Department of Environment that the activity ought to be referred to it for assessment.
The Court held that the Minister had made a legal error. He had applied the wrong legal test and taken into account an irrelevant consideration. The judgment received broad media coverage. It brought home to Commonwealth Ministers and bureaucrats the nature of their obligation to refer matters to the Department of Environment.
1994 – Reform of water law to save the Murray-Darling Basin
The passing of the Commonwealth’s Water Act in 2007 was a significant step towards more sustainable management of the iconic Murray-Darling Basin. Through our expert policy and law reform team, we called for regulatory action as far back as 1994 when we published recommendations for legal and administrative reform on the environmental health of NSW inland rivers.
Like the canary in the coal mine, the EDO was one of the first voices to raise the issue of the need for water reform in 1994. It made important recommendations for changes to management of the Murray Darling Basin.
- The Hon. Bob Debus, Minister for the Environment (2005)
1994 – First climate change legal action in Australia
We acted for Greenpeace in the first climate change case to ever be heard by an Australian court. The case involved a challenge to Singleton Council’s approval of a coal-fired power station in Warkworth, in the Hunter Valley.
Greenpeace argued that the power station would release carbon dioxide into the atmosphere, contributing to climate change and that the precautionary principle required that consent be refused due to the potential adverse impacts of climate change. Greenpeace also argued that the approval of the power station contradicted both Australian and international policies to reduce greenhouse gas emissions.
While the Court accepted that there was national and international concern with the enhanced greenhouse effect and the energy sector's contribution to it, it found no legal basis for refusing consent.
This case formed the foundation for all future climate change litigation in Australia. Since that time, Australian courts have further examined and developed the precautionary principle and other aspects of ecologically sustainable development to the point where a failure to consider the impacts of a development on climate change or the impacts of climate change on a development, can lead to an approval being overturned.
1996 – EDO goes national
Following the establishment of EDO NSW, Queensland followed suit, with EDO QLD incorporated in 1989. The next EDO was established in Victoria in 1990, followed by South Australia in 1992.
Then, in 1996, with funding provided under the Federal Government’s Justice Statement, EDOs were established in the remaining States and Territories. The individual offices formed the Australian Network of Environmental Defenders Offices and cooperated on matters of national interest. Today, ANEDO is known as EDOs of Australia and continues to work collaboratively to provide access to environmental justice to all Australians.
1997 – First grant from the Solicitors’ Trust Account Fund
We were awarded a grant of $250,000 over three years from the Solicitors’ Trust Account Fund which is now known as the Public Purpose Fund. The Fund, which is based on the interest from solicitors’ trust accounts, awards grants to support community oriented activities and increase the public’s access to professional legal advice. This funding boost was well timed because in the same year the Commonwealth Government imposed a funding restriction on all EDOs which prevented them from using federal funds to take legal action in court.
Since being awarded our first triennial grant, the PPF has remained on of our major and most important funders.
1997 – Landmark court order for developer to restore wildlife corridor
Mr Oshlack argued that the clearing was not authorised by the development consent. While the case was being heard, the developer continued with the subdivision by clearing a wildlife corridor, excavating two 300m drains adjacent to a wetland and rainforest and undertaking extensive earthworks.
The Land and Environment Court found that the developer had committed serious breaches of both planning and environmental law, and the breaches of the development consent were found to be so serious that the consent was rendered null and void.
In a landmark judgment, the Court ordered a full restoration of the site. In one of the most extensive and comprehensive restoration orders ever made, the developer was ordered to rip up all the roads, backfill the drains, under the earthworks and replant the entire site, including the wildlife corridor from seeds collected on the site.
2000 – Milestone for sustainable land management
We acted for Mr Wilson who appealed against the approval of 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 was resolved with the parties agreeing on stringent conditions for groundwater monitoring, controls on clearing and a ban of the use of herbicides in the irrigation area.
The conditions contained in the settlement set the standard against which future cotton developments would be measured, an important milestone towards sustainability.
As Chief Justice Pearlman said about the case:
In my opinion, this is a very important case. It concerned a very serious development, in terms of its potential environmental impacts, it highlighted the important role that third party objectors can play in protecting our natural resources, and it demonstrated that the Court's processes were effective in managing the environment.
2002 – Former EDO NSW Principal Solicitor appointed to NSW Land and Environment Court
Dr Nicola Pain became Principal Solicitor of EDO NSW in 1987. During her nearly five years in the role, the office expanded to employ four solicitors.
She moved on to positions with the NSW Department of Environment and Climate Change and the Australian Government before being appointed as a Judge of the Land and Environment Court, a position she still holds today.
2003 – Scientific Advisory Service begins
Many planning and environmental law issues require objective scientific advice. In recognition of this, we established our Scientific Advisory Service (SAS) to contribute to the range of work undertaken by the office. The SAS comprises and in-house scientific advisor, a technical advisory panel made up of academic experts who provide strategic advice to us on specific issues, and an expert register which is made up of over 140 scientific experts who provide assistance on a pro bono basis.
The work of the Scientific Advisory Service provides support across the functions of our office, and comprises advice on the impacts of proposed developments (including the adequacy of Environmental Impact Statements) and on the monitoring and compliance of activities impacting on the environment, as well as support for our policy and law reform, international, and community education work.
An example of a major piece of work undertaken through the Scientific Advisory Service came in 2009 when we convened a roundtable of scientific and legal experts to analyse whether NSW and Commonwealth threatened species laws were capable of protecting biodiversity under climate change. Two discussion papers were prepared – one addressing the NSW legal framework and the other addressing the Commonwealth legal framework.
2004 – Landmark whales case
We acted for Humane Society International in a landmark case that sought to prevent Japanese whalers from killing whales in Australian Antarctic waters.
This was a complex case because, although Australian law establishes a whale sanctuary in Australian territorial waters adjacent to Antarctica, Japan does not recognise Australia's sovereignty over those waters or the law that prevents whaling. Concerned that the case would spark a diplomatic incident with Japan, the Federal Attorney-General attempted to have the case thrown out of Court. However, the Federal Court ruled that the case could continue and ultimately confirmed that Japanese whaling activities in Australian Antarctic waters were illegal and issued an injunction to restrain the whalers from further breaches of the law.
HSI representatives travelled to Japan to serve the injunction upon the whaling company but the company refused to accept the injunction and indicated that it would continue its whaling program in the Antarctic.
This case revealed the extent of Japanese whaling practices in Antarctic waters and provided a focal point for international pressure on Japan to end its so-called scientific whaling program. The Australian Government initially indicated it would send ships to Antarctica to enforce the injunction, but later abandoned this strategy and instead commenced proceedings against Japan in the International Court of Justice. In 2014 the ICJ ruled that Japan must halt its whaling program in the Southern Ocean.
2004 – Judgment declaring ‘wilderness is sacrosanct’
We brought a case on behalf of the Blue Mountains Conservation Society to challenge the permit that allowed the producers of Stealth, a war movie, to film in the Grose Wilderness area of the Blue Mountains National Park.
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’.
2005 – Former EDO NSW Principal Solicitor appointed Chief Judge of the NSW Land and Environment Court
Brian Preston was Principal Solicitor of EDO NSW from the time we opened our doors in 1985 until 1987 when he became a barrister. In his time at the Bar, he took a number of briefs from EDO NSW and established his reputation to the point where he was elevated to the role of Chief Judge of the Land and Environment Court, a position he still holds today.
2005 – Special leave to appeal to the High Court in the Gwydir River case
We represented the NSW Nature Conservation Council in a case that argued that the water-sharing plan for the Gwydir Regulated River Water Source was invalid because it failed to address environmental necessities. The Land and Environment Court dismissed the appeal, finding the plan was validly made. We were then granted special leave to appeal to the High Court. The NSW Government avoided the court action by passing special legislation to retrospectively validate all water sharing plans which forced the Nature Conservation Council to abandon its legal challenge.
2006 – Northern Rivers office opens
We have long worked throughout rural and regional NSW With support from our major funder, the Public Purpose Fund, we launched a new office in Northern NSW as part of our commitment to addressing serious environmental issues and ensuring that rural communities also had access to legal services.
2006 – Aboriginal Engagement Program begins
Our Aboriginal Engagement Program started with a part-time Aboriginal Liaison Officer whose role was to build awareness of our services, and explain how we could work with Aboriginal communities. This position was the first of its kind in Australia.
We started by producing Caring for Country, a respected and comprehensive guide to environmental law for Aboriginal communities. This was supplemented by a series of Caring for Country workshops throughout NSW.
Our program has grown significantly over the past eight years. As well as community outreach and education, the program now also provides advice and litigation work on cultural heritage issues as well as focusing on policy and law reform work. Today, around one-third of all cases EDO NSW undertakes each year involve Aboriginal clients or groups with Aboriginal and Torres Strait Islander members.
2007 – Landmark climate impacts case
We assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a proposal to build up to 285 homes and an aged care facility on flood prone land at Sandon Point near Wollongong
The Land and Environment Court found that the Planning Minister failed to properly apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal because he did not consider whether the changed weather patterns caused by climate change would lead to an increase flood risk to the proposal.
The Minister for Planning successfully appealed to the NSW Court of Appeal. The Court of Appeal agreed that consideration of ESD would have required consideration
of the effect of climate change flood risk and expressed surprise that such factors were not considered. However, the Court found that this failure did not render the approval void because the approval was for a ‘concept plan’ and final development approval would be granted at a later date. The Court indicated that the Minister would need to consider matters relevant to ESD (including the impacts of climate change on the development) when the project applications were being determined.
This case had important implications for how the Planning Minister must address matters relevant to climate change when determining major project applications.
2007 – Legal action leads to ecological urban development
On behalf of Matthew Drake-Brockman, we challenged the validity of the Minister for Planning’s approval of the redevelopment of the Carlton United Brewery site in Chippendale. Mr Drake-Brockman argued that the Minister failed to properly consider the principles of ecologically sustainable development in granting approval for the Central Park project, which involved plans for 1,600 residential apartments, commercial officer and retail premises.
Although the Land and Environment Court dismissed the challenge, the case highlighted the ‘business as usual’ approach that was being taken to this important urban renewal project and the missed opportunity to adopt innovative green design principles. To their credit, the developer – Frasers Property – revisited their plans and ended up incorporating many of the sustainability principles it had initially overlooked, including an onsite tri-generation plant to supply low-carbon electricity, heating and cooling to the development, and a water recycling system. Today, Central Park is claimed to be Australia’s greenest urban village.
2008 – Court overturns approval for biggest housing development in the State in the infamous ‘land bribe’ case
We acted for the Gwandalan Summerland Point Action Group in a case which challenged the Minister for Planning’s approval of a 600 house subdivision on sensitive land at the historic coastal township of Catherine Hill Bay, south of Newcastle. In a major victory for the local community, the Land and Environment Court refused the subdivision which was, at the time, the State’s biggest housing development.
Prior to the subdivision application being lodged, the Department of Planning had considered the land to be inappropriate for urban release. However, the owner of the land – Rosecorp – entered into a Memorandum of Understanding with the then Minister for Planning, Frank Sartor, under which the Minister agreed to facilitate development on the site in exchange for Rosecorp relinquishing 300ha of the land to the NSW Government so that it could be converted to a conservation reserve. The Planning Minister then approved Rosecorp’s subsequent application for subdivision. This gave rise to the legal challenge in which the Action Group alleged that the decision to approve the development would give rise to an apprehension of bias and that the Minister had unlawfully taken into account the terms of the MOU and the Deed he signed with Rosecorp in granting the approval.
The Land and Environment Court agreed with the Action Group, referring to the MOU as a land bribe. It ruled that the approval was void. This case had implications for several other developments that involved MOUs or Deeds of Agreement between developers and the Planning Minister.
2008 – Rural Landholders Guide to Environmental Law in NSW launched
Our Outreach Program delivers an extensive range of legal resources to the community, including tailored workshops on environmental issues, fact sheets, and legal guides. With funding from the NSW Government through its Environmental Trust, we prepared a comprehensive guide to the many laws regulating land management in NSW. This guide was intended to help rural landholders to navigate complex regulatory requirements and to improve land management practices by increasing knowledge of and compliance with the law. Nearly 60,000 copies of this publication have been distributed throughout NSW and it continues to be downloaded from our website.
2008 – 500th volunteer walks through EDO NSW’s doors
Volunteers have been critical to the functioning of our office since its inception. In 2008 we celebrated our 500th volunteer. Today, we have over 25 volunteers working across all of our functions at any one time. Their help vastly increases our capacity to meet the huge demand for our services.
When you scan the lists over decades of reports, totalling hundreds of individuals, you see names of people who’ve gone on to great success at the EDO itself, elsewhere in the law, in politics and public service, and across society.
- Murray Hogarth, former EDO NSW Board Member
2011 – Community action forces power station to reduce river pollution in Sydney’s drinking water catchment
The Blue Mountains Conservation Society discovered, through independent water testing, that the Wallerawang Power Station near Lithgow was polluting the Coxs River without a licence. However when it reported this to the responsible Government department, they failed to take any enforcement action.
This prompted the Society to approach us about commence civil enforcement proceedings in the Land and Environment Court. The case ran for two and a half years before being finally settled out of Court. The operator of the power station, Delta Electricity, publicly acknowledged that it was not authorised to discharge the pollutants and that it required a licence to authorise any future pollution. Delta also committed to a significant program of works to prevent future pollution of the Coxs River, which is part of the Sydney drinking water catchment.
2011 – Release of ‘If a Tree Falls: Compliance failures in the public forests of New South Wales’
We released this report in light of evidence of systemic breaches of forestry regulations throughout all of NSW’s public forests. The Nature Conservation Council of NSW requested EDO NSW to prepare this report as a result of growing concern in the community about these breaches and the implications for biodiversity and the environment.
The report addresses the state of NSW’s public-owned native forests and the flora and fauna species that inhabit them, the regulatory framework for the management of those forests and the widespread breaches of forestry regulation that our clients are reporting to us from across the state. It is clear that native forests are not being managed in a way that complies with the principles of Ecologically Sustainable Forest Management and the conservation of biodiversity. The report makes a number of recommendations to address the inadequacies of the current regulatory system.
2011 – Access to justice
We acted for Ned Haughton – a student and environmental campaigner – in a challenge to the Minister for Planning’s approval of two new coal or gas fired power stations in the Hunter Valley.
Both proposals were declared to be ‘critical infrastructure’ projects. The law regulating these types of projects contained a clause that sought to prevent judicial review by the Courts without the permission of the Minister for Planning. Mr Haughton sought the Minister’s permission to challenge the approvals on several grounds, including the ground that the Minister failed to consider the impact of the projects on climate change as part of his duty to consider the public interest. The Minister refused permission. In order to proceed with the challenge, Mr Haughton first had to overcome the privative clause.
The Land and Environment Court found that the privative clause could not remove the jurisdiction of the Court and that any person can bring proceedings to address alleged breaches of the Act.
This case set an important precedent in relation to access to justice by overcoming a key obstacle to civil judicial review proceedings relating to critical infrastructure projects.
We followed up this case by obtaining an injunction to halt Dart Energy’s exploratory drilling for coal seam gas (CSG) at Fullerton Cove, near Newcastle without the need to make an undertaking as to damages as well as a decision on costs affirming the public interest nature of the litigation.
The Court found that the case “epitomises the very concept of litigation properly brought in the public interest” and ordered the Department to pay the legal costs of the residents in disputing the issue of costs.
2013 – ‘Have Your Say’ website launched
A key objective of our Outreach Program is to build the capacity of the NSW community to engage in environmental decision-making at all levels of government To facilitate this, and with the support of the NSW Government through its Environmental Trust, we launched a new online tool called ‘Have Your Say’. The tool is designed to help people to stay abreast of current opportunities to engage in environmental decision-making processes. The site also provides guidance on how to engage effectively, with tips from decision-makers themselves, as well as community members who have achieved positive outcomes.
2015 – Still taking on David and Goliath battles
This is the last of our 30 highlights over thirty years. As our former Chair Justice Murray Wilcox said, given the public interest nature of our work, there’s inevitably David and Goliath element to the cases we run. Here we’ll look at two of our most recent David and Goliath battles against coal mines on behalf of the community.
With our help, the Bulga Millbrodale Progress Association won battle against mining giant Rio Tinto and the NSW Government when it successfully challenged the approval to expand an open cut coal mine to within 2.6km of the historic village of Bulga. This case was significant because the Court was given the opportunity to thoroughly examine, with the assistance of experts, the economic modelling put forward in support of the mine. The Court found that the economic benefits of the mine, which had been overstated by Rio Tinto, could not outweigh the significant social and environmental impacts on the residents of Bulga. Rio Tinto planned to open cut mine a ridge that acts as a natural buffer between the village and the mine. The company had previously signed an agreement with the NSW government promising to protect this area “in perpetuity”, forever, as a biodiversity offset.
In a first for NSW, the Land and Environment Court refused the mine on its merits, a decision which was later upheld by the NSW Court of Appeal.
In 2015, we represented the Mackay Conservation Group in its successful challenge to the Federal Government’s approval of the Carmichael coal mine in central Queensland, which would be one of the largest coal mines in the world.
The community group’s claim alleged that Federal Environment Minister, Greg Hunt, failed to properly consider the impact of the Carmichael mine on the Great Barrier Reef, in approving the project. However it was the Minister's failure to take into account the approved conservation advices for the Yakka Skink and the Ornamental Snake that resulted in the victory.