Current Cases

We represent individuals and community groups in public interest litigation to protect the environment. These are the cases we are currently working on.

Wollar Progress Association Incorporated v Wilpinjong Coal Pty Limited & Anor

Update: The Wilpinjong matter is listed for hearing in the LEC on 8, 9 and 12 February 2018.

The Wollar Progress Association, represented by EDO NSW, has commenced proceedings in the Land and Environment Court to challenge a decision by the NSW Planning Assessment Commission (PAC) to allow the extension of the Wilpinjong open cut coal mine near Wollar, Mudgee.

Wilpinjong Coal, a subsidiary of Peabody, sought permission to expand its open-cut mining operations for an additional seven years and develop a new open cut pit that will bring the mine closer to the village of Wollar. The Wollar Progress Association has long held concerns about the impact of the Wilpinjong mine on the local community and the environment. The PAC approved the extension in April 2017.

The Wollar Progress Association is arguing that the approval is invalid because, amongst other things, the PAC hasn’t considered climate change impacts in the way it should according to NSW planning law. The NSW Government introduced a State Environmental Planning Policy in 2007 which requires decision-makers to consider the greenhouse emissions of mines, including downstream emissions. The law requires the decision-maker to have regard to relevant State or national policies, programs or guidelines. NSW currently has a target of net-zero emissions by 2050 under its 2016 Climate Change Policy Framework.

The Wollar Progress Association is arguing that the emissions from the burning of this coal should have been considered by the PAC in light of government objectives to reduce greenhouse gas emissions.

Image of Bayswater and Liddell power stations by Brian Yap via Creative Commons.

This is the first case to test the efficacy of these requirements, which were designed to ensure the climate change impacts of mining are fully assessed, including emissions arising from the burning of product coal once sold. The proper assessment of downstream emissions is particularly important in this case because a substantial proportion of the coal from the Wilpinjong mine is planned to be burned at power stations within NSW.

The Wollar Progress Association is also arguing that the approval is invalid on other grounds. Firstly, that the PAC was not properly constituted in accordance with legal requirements; secondly, that the PAC did not undertake a proper assessment of the impacts on biodiversity. The mine will clear endangered ecological communities.

Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for Wollar Progress Association and our Principal Solicitor, Elaine Johnson, is the solicitor on record.

We are grateful to barristers Geoffrey Kennett SC and Joanna Davidson for their assistance in this matter.

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NCC vs Minister for Primary Industries and Another

Update: This matter is listed for hearing in the LEC on 23 and 24 April 2018.

The Nature Conservation Council of NSW, represented by EDO NSW, has commenced proceedings in the Land and Environment Court to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2017 (the Code) under the Local Land Services Act 2013 (NSW). 

The decision to make the Code was made against the backdrop of the NSW Government’s 2016 biodiversity and land clearing reforms, which saw the introduction of, amongst other things, the Biodiversity Conservation Act 2016 (NSW) and the Local Land Services Amendment Act 2016 (NSW). The Local Land Services Amendment Act amended the Local Land Services Act 2013 and inserted a provision which allowed the Minister for Primary Industries to make the Code. The Code purportedly came into force on 25 August 2017, and allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment. The Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural land can and cannot occur, however the release of these maps is significantly delayed and landholders are required to self-assess whether the Code applies to their land.

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Koala and joey. Photo from Wikimedia (Benjamint444).

The Nature Conservation Council of NSW is arguing that the Code is invalid because the Minister for Primary Industries did not obtain the agreement of the Minister for the Environment before the Code was made, and that both the Minister for Primary Industries and the Minister for the Environment failed to have regard to certain principles of ecologically sustainable development, including the precautionary principle, inter-generational equity and the conservation of biological diversity and ecological integrity, when making, or giving concurrence to, the Code.

Section 60T of the Local Land Services Act, under which the Code is made, makes it a requirement for the Minister for Primary Industries to obtain the concurrence of the Minister for the Environment before making the Code, and places a positive obligation upon both Ministers to have regard to the principles of ecologically sustainable development.

Proper consideration of the principles of ecologically sustainable development is particularly important in this case for the following reasons:

  • clearing of native vegetation is listed by the NSW Scientific Committee as a Key Threatening Process under the Biodiversity Conservation Act 2016, yet the Code allows self-assessed broadscale clearing across NSW in the absence of any assessment of the likely cumulative impact of clearing under the Code on biodiversity or land or water resources;
  • there is a lack of full scientific certainty about the effect of the Code in the absence of native vegetation regulatory maps;
  • the Code switches off requirements to carry out environmental assessments for clearing; and
  • the Code provides a defence to offences under the Biodiversity Conservation Act 2016 in relation to the picking of threatened species, threatened ecological communities or protected plants, damage to a declared area of outstanding biodiversity value or damage to the habitat of a threatened species or threatened ecological community, if the person charged can establish that the clearing was authorised by the Code.

This is the first case to test the new provision of the Local Land Services Act which allowed for the making of the Code.

We are grateful to barristers Jeremy Kirk SC and David Hume for their assistance in this matter.

Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for NCC NSW, and our Principal Solicitor, Elaine Johnson, is the solicitor on record.

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Inland Rivers Network v Harris & Another

EDO NSW, on behalf of its client the Inland Rivers Network, has commenced civil enforcement proceedings in the NSW Land and Environment Court in relation to allegations of unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.

The two water access licences at the centre of these allegations allow the licence holder to pump water from the Barwon-Darling River in accordance with specified licence conditions, as well as rules set out in the relevant ‘water sharing plan’. The conditions and rules specify – amongst other things – how much water can be legally pumped in a water accounting year (which is the same as the financial year) and at what times pumping is permissible (which depends on the volume of water flowing in the river at any given time). 

Our client alleges that the holder of these licences pumped water in contravention of some of these conditions and rules, thereby breaching relevant provisions of the Water Management Act 2000 (NSW) (WM Act). The allegations are based on licence data obtained by EDO NSW earlier in 2017 from Water NSW, a state-owned corporation charged with the responsibility of regulating compliance with the WM Act. 

Analysis of this data, along with the relevant rules and publicly available information on river heights, indicates that the licence holder may have pumped significantly more water than was permissible on one licence during the 2014-15 water year, and taken a significant amount of water under another licence during a period of low flow when pumping was not permitted in the 2015-16 water year. Despite being made aware of these allegations by EDO NSW on two occasions, in April and August 2017, and having had access to the data since at least July 2016, Water NSW has not provided any indication that it intends to take compliance action against the licence holder.

Both allegations concern the potentially unlawful pumping of significant volumes of water, which may have had serious impacts on environmental flows in the river and downstream water users. However, our client is particularly concerned by the alleged over-extraction in the 2014/15 water year, as this period was so dry that the Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell to 4 percent of their total storage capacity. This in turn threatened Broken Hill’s water security and led the NSW Government to impose an embargo on water extractions during part of that year in order to improve flows down the Barwon-Darling into the Lakes and Lower Darling River. 

In these proceedings, the Inland Rivers Network is seeking, amongst other things, an injunction preventing the licence holder from continuing to breach the relevant licence conditions. In addition, and in order to make good any depletion of environmental flows caused by the alleged unlawful pumping, our client is also asking the Court to require the licence holder to return to the river system an equivalent volume of water to that alleged to have been unlawfully taken, or to restrain the licence holder from pumping such a volume from the river system, during the next period of low flows in the river system. Failure to comply with a court order constitutes contempt of court, which is a criminal offence. 

EDO NSW is grateful to barristers Tom Howard SC and Natasha Hammond for their assistance in this matter.

Brendan Dobbie, Senior Solicitor at EDO NSW, has carriage of this matter for IRN.

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Residents Against Intermodal Development Moorebank Inc v NSW Minister for Planning and Qube Holdings Ltd

Update: After the hearing in December 2017, judgement was reserved.

Community group Residents Against Intermodal Development Moorebank (RAID), represented by EDO NSW, has appealed to the Land and Environment Court to protect a critically endangered ancient plant species thought to be extinct for almost 200 years.

RAID is asking the Land and Environment Court to undertake a full reconsideration of the approval of the large industrial shipping container facility at Moorebank, in Western Sydney, because the critically endangered Hibbertia fumana, thought to be extinct but recently rediscovered in the area of the development, wasn’t considered when the development was approved in December last year.

The Hibbertia fumana was rediscovered in the vicinity of the proposed terminal only 2 months before the Moorebank development was approved. The facility is a major development expected to process 1.5 million shipping containers every year.

In December 2016, the Planning Assessment Commission (PAC) approved the development, but was not told about the existence in the area of the rediscovered species, or the impacts that the development may have on the species.

Just four days after the PAC approved the development, the NSW Scientific Committee publicly listed the rediscovered species as critically endangered. 

Hibbertia fumana, a delicate shrub with yellow flowers, was last documented in 1823 and was thought to be extinct. The Moorebank area where the development is located is the only known population of Hibbertia fumana.

Biodiversity is essential for a prosperous economy and healthy environment, but as a nation we are not doing enough to protect it. The State of the Environment Report tabled in Parliament by the Commonwealth Government in March 2017 paints a worrying picture of the rapid decline of threatened species in Australia: “The outlook for Australian biodiversity is generally poor, given the current overall poor status, deteriorating trends and increasing pressures.”

Threatened species are being pushed to extinction development by development, a phenomenon often referred to as ‘death by a thousand cuts’. It is critical to determine whether or not this development will bring about one more extinction.

Our client is asking the Land and Environment Court to undertake a full reconsideration of the SIMTA development approval, including the potential impact on the Hibbertia fumana, and the community more broadly. This is a ‘merits appeal’ based on the public’s interest in protecting critically endangered species and protecting biodiversity.

Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for RAID.

We are grateful to barristers Andrew Pickles SC and Dr James Smith for their assistance in this matter.

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Hibbertia fumana flower


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Humane Society International Australia v Great Barrier Reef Marine Park Authority

Humane Society International Australia (HSI), represented by EDO NSW, is seeking independent review of the Great Barrier Reef Marine Park Authority’s (GBRMPA) decision to approve a lethal shark control program in the Great Barrier Reef Marine Park.

HSI has lodged an appeal in the Administrative Appeals Tribunal (AAT) which will require a full reconsideration of the approval of the shark control program. The 10 year lethal control program targets 26 shark species in the Marine Park, including threatened and protected species. The appeal is based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park.

The Great Barrier Reef is a World Heritage Area globally recognised as an outstanding example of biological evolution, containing unique, rare and superlative natural features and areas of exceptional natural beauty. The World Heritage listing notes that the Great Barrier Reef is one of the richest and most complex natural ecosystems on earth, and one of the most significant for biodiversity conservation. Australia has a legal responsibility to ensure its protection.

As apex predators, sharks play a vital role in maintaining the health of the Great Barrier Reef. HSI is concerned about the ongoing impacts caused by the use of lethal drumlines which are known to impact not only on shark species but also dolphins, turtles and rays. HSI is calling for non-lethal alternatives for bather protection.

In these proceedings, the AAT will be presented with expert evidence based on the best available science relating to shark control programs and will determine whether the program as approved should go ahead.

Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for HSI Australia.

We are grateful to barristers Philip Clay SC and Natasha Hammond for their assistance in this matter.

Link to this case summary.

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Humane Society International v Department of the Environment and Energy

Our client, Humane Society International (HSI), is seeking access to documents held by the Australian Department of the Environment and Energy on the adequacy of NSW’s biodiversity offsets policy for major projects ('the Policy').

HSI argues that the public has a right to know why the Australian Government believes, despite evidence to the contrary, that the NSW Policy meets national standards. On behalf of HSI, we are asking the Administrative Appeals Tribunal to find that it is in the public interest to release the documents under Freedom of Information laws. 

Background

Biodiversity offsets have become standard practice in the approval and assessment of major developments in Australia, even though there is little evidence that offset schemes achieve their intended purpose of protecting threatened species from extinction.

Biodiversity offsets allow developers such as mining companies to buy/manage land, or pay money into a fund, to compensate for the clearing of forests and areas containing threatened plants and animals.

Community groups such as HSI are concerned that the method for calculating biodiversity offsets in NSW, contained in the NSW Policy, does not properly protect the environment – including the plants and animals on the national list of threatened species and ecological communities.

The Australian Government, which is responsible for the national list of threatened species – and has international obligations to protect and conserve biodiversity in Australia – has stated that the NSW Policy meets national standards of environmental protection. However, analysis by EDOs of Australia shows clearly that the NSW policy provides weaker environmental protection than required under national environment policies.

With the Australian Government delegating more and more development approval powers to the states and territories under its ‘one stop shop’ policy, community groups fear that there will be fewer protections for our nationally threatened species and ecological communities.

HSI is therefore seeking access to documents detailing the Australian Government’s analysis of the NSW Policy. Access to this information is vital for the public to have confidence that important environmental protections are not being eroded.

Rana Koroglu, Senior Solicitor at EDO NSW, has carriage of this matter for HSI.

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Koala


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Millers Point Community Assoc. Incorporated v Property NSW and Others – Sirius Building

Update: In October 2017, the NSW Environment Minister remade the decision not to list the Sirius building on the State Heritage Register. The Department of Planning and Environment has prepared zoning, height and Gross Floor Area controls to the site in advance of a sale process by landowner Property NSW. The draft SSP SEPP is open for public comment till 16 February 2018.

Update 25 July 2017: Millers Point Community Association was successful in its challenge. The Court held that the Minister's decision not to list the building on the State Heritage Register was invalid and of no effect and ordered the Minister to remake the decision in accordance with the law. The NSW Government has been ordered to pay our client's legal costs. This is a seminal judgment on the Heritage Act, which has been in force for 40 years and came about as a result of the Green Bans of the 1970s in the Rocks.

EDO NSW represented community group Millers Point Community Assoc. Incorporated in its successful court challenge to NSW Minister for Heritage's decision not to list the Sirius Building in Millers Point, Sydney, on the State Heritage Register, even though the Heritage Council recommended that the building be listed.

Sirius, a public housing building owned by Property NSW, is recognised in Australia and internationally as a good example of ‘brutalist’ architecture – a 20th Century architectural style that might seem ugly to many people, but many consider to be bold, uncompromising, truthful, functional and egalitarian.

The complex was built to rehouse public housing tenants who were under threat of eviction when The Rocks area was being proposed for redevelopment in the 1970s. It is an iconic building, not just because it is a rare example of 'brutalist' architecture, but also as a reminder of the 'green ban' movement of the 1970s led by Jack Mundey. That historic social movement saved The Rocks, now a Heritage Conservation Area, from destruction and ultimately led to the introduction of key environmental laws, including the Heritage Act 1977.

The Sirius Building

In December 2015, the Heritage Council recommended that the Sirius Building be listed on the State Heritage Register because of its rarity and aesthetic value.

However, in July 2016, the Minister for Heritage made a decision not to list the building on the Heritage Register. The Minister recognised that the Sirius Building may meet the criteria for listing, but he found that the building’s heritage value is outweighed by financial considerations, namely ‘the undue financial hardship’ that the building’s heritage listing could cause to the NSW Government – as a result of a reduction in the building’s sale value ‘possibly by in the order of $70 million, which would potentially represent foregone funds for additional social housing.’

In other words, in considering whether to add the Sirius Building to the State Heritage Register, the Minister placed greater importance on the loss of funds to the Government from the sale of the building than on the building’s heritage significance.

Our client challenged the Minister’s decision for two reasons: first, that he incorrectly interpreted the meaning of ‘undue financial hardship’ to the Government and considered that a drop in the building’s sale value and the potential use of that revenue for social housing elsewhere was a reason not to list the building under the Heritage Act 1977 (NSW) (Heritage Act); second, that he failed to determine whether the Sirius Building was of State heritage significance in a way that is required under the Heritage Act.

Put simply, our client argued that the Heritage Act does not allow for the Minister to consider a potential loss of funds to the NSW government or foregone funds for social housing as justification for not listing a building on the State Heritage Register.

The Land and Environment Court declared the Minster’s July 2016 decision not to list the building invalid, ordered the Minister to decision in accordance with the law. The NSW Government has been ordered to pay our client's legal costs. 

Our client believes that the Sirius Building is an important part of the social history, heritage and community of Millers Point, and that its importance should be recognised on the State Heritage Register, and it calls on the Minister to consider the Sirius Building for State Heritage Register listing as required under the Heritage Act.

Belinda Rayment, Solicitor at EDO NSW, had carriage of this matter for Millers Point Community Association.

We are grateful to barristers Bruce McClintock SC and Shane Prince for their assistance in this matter.

Read the judgment.

Link to this case summary.

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Australian Conservation Foundation v WaterNSW

February 2018: These proceedings are on hold pending an application filed to the NSW Civil and Administrative Tribunal by a third party. We will provide more information and an update soon.

Our client, the Australian Conservation Foundation (ACF), is seeking access to information held by WaterNSW (the NSW Government regulator) about Water Access Licences held by major irrigators on the Barwon-Darling River under the Water Management Act. WaterNSW has denied access to information which ACF argues the public has a right to know.

ACF argues that the public has a right to know how the NSW Government is regulating and enforcing the use of one of our most vital natural resources, and that transparency is key to public confidence in the regulatory system governing water access and use in the Barwon-Darling Basin.

On behalf of ACF, we are asking the NSW Civil and Administrative Tribunal (Tribunal) to decide that the release of this information is in the public interest.

Background

In December 2016, we applied, on behalf of ACF, for information about the Water Access Licences, and complaints made in respect of potential non-compliance, under NSW freedom of information laws.

WaterNSW released some licensing information in February 2017, but much of what our client requested was withheld on the basis that it would prejudice the business affairs of the licence holders and because WaterNSW was conducting its own investigation into the licences.

On the basis of the information that was released, we wrote to WaterNSW, on behalf of ACF, requesting the regulator to investigate certain alleged breaches of the Water Management Act 2000 we had identified. WaterNSW advised that it is conducting an investigation into those matters. 

In May 2017, we applied for further information, on behalf of ACF, in respect of other licences held by the irrigators. WaterNSW responded earlier in July by refusing to release the majority of the information sought, again, on the basis it would prejudice the business affairs of the licence holders.

The information sought is crucial to understanding how the Water Management Act is administered by WaterNSW. Accordingly, the release of the information is likely to inform an issue of significant public importance, that being whether laws regulating extraction of water from the Barwon-Darling river system are being complied with.

For this reason, on behalf of ACF, we have appealed WaterNSW’s decisions to withhold this information to the Tribunal. ACF will argue that the business affairs exemption does not apply to the information, that adequate reasons for refusal were not provided, and that there is an overriding public interest in disclosure. Access to this information is vital for the public to have confidence that important environmental laws protecting fair and equitable access to Australia’s water resources are being properly administered.

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With your support, we can continue to help community groups like the Australian Conservation Foundation defend the environment. Please make a donation today.