Current Cases

EDO NSW represents individuals and community groups in public interest litigation to protect the environment

These are the cases that EDO NSW is currently working on.

Friends of Tumblebee v ATB Morton & Cessnock City Council

Regent Honeyeater by Dean Ingwersen/Birdlife AustraliaEDO NSW is acting for a local community group, Friends of Tumblebee, in a challenge to Cessnock City Council’s approval of a steel fabrication and workshop facility to be constructed in the Hunter Economic Zone.

The site where the development is proposed contains approximately 3.2 hectares of potential habitat for the Regent Honeyeater (Anthochaera Phrygia), which will be cleared if the development goes ahead. The Regent Honeyeater is a rare species of bird, recently added to the critically endangered list under the Threatened Species Conservation Act 1995.

Friends of Tumblebee claim that the proposed development is likely to significantly affect the Regent Honeyeater, therefore the development application should have been accompanied by a Species Impact Statement (SIS). The purpose of a SIS is to provide the Council with detailed information about how the proposed development will affect threatened species such as the critically endangered Regent Honeyeater, and to assist the Council in deciding whether or not to approve the development.  At the time Cessnock City Council approved the development, the application was not accompanied by a SIS.

EDO NSW is grateful to barristers Jason Lazarus and Josie Walker who will act as counsel for Friends of Tumblebee in this matter.

Bulga Milbrodale Progress Association Inc. ats Warkworth Mining Limited & Ors

The NSW Court of Appeal today (April 7, 2014) ruled in favour of the residents of the Hunter Valley village of Bulga and the protection of a rare forest containing endangered plants and animals, by upholding the refusal of an open cut coal mine expansion. Read the Court of Appeal judgment.

The Court of Appeal today unanimously dismissed, with costs, an appeal by Warkworth Mining Ltd (owned by Rio Tinto) and the NSW Government against a NSW Land and Environment Court decision last year that refused the mine expansion.

EDO NSW is representing the Bulga Milbrodale Progress Association in the NSW Court of Appeal.

The Court of Appeal rejected all arguments put by Rio and the NSW Government that alleged that the NSW Land and Environment Court made errors of law. 

The Court of Appeal found no fault with the Land and Environment Court decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species

Rio Tinto was seeking to open cut mine a biodiversity offset area, containing an endangered ecological community, the Warkworth Sands Woodland, and threatened animal species including the squirrel glider and the speckled warbler. This woodland is unique to the area and only 13 per cent of the original forest remains.

Rio Tinto had previously promised to permanently protect this area, under an agreement with the NSW government, as part of the existing approval from 2003.The protected area also includes Saddleback Ridge which provides a buffer between the mine and Bulga.

Significantly, the Land and Environment Court previously found Rio Tinto’s economic modelling deficient in many ways, including its methodology that over-estimated the benefits of the mine.

Read the judgment by clicking the link below.

Judgment    Appeal Judgment

Hunter Environment Lobby v Minister for Planning & Ashton Coal Operations Limited

The Hunter Environment Lobby (HEL) is appealing against approval by the NSW Planning Assessment Commission (PAC) for Ashton Coal’s South East Open Cut (SEOC) coal mine project at Camberwell in the Hunter Valley. This case is a merits appeal, which means that the Land and Environment Court will independently determine Ashton Coal’s application for the mine based on all the original documents, as well as new evidence filed by the parties.

The PAC originally refused the SEOC mine in December 2011, finding that it would have unacceptable impacts on human health and water resources, including Glennies Creek and the Hunter River. The refusal was based in particular on submissions from the NSW Department of Health (including a report by the CSIRO) and the NSW Office of Water opposing the project. After the PAC’s refusal, the Land and Environment Court declared the PAC’s decision to be invalid as the PAC had not considered an Addendum Report from the Department of Planning which was issued several hours after the PAC’s refusal. The Addendum Report included a report from a groundwater expert commissioned and paid for by the Department. The PAC then approved the SEOC mine in October 2012, based on new advice from the Office of Water which was a “complete reversal” of its earlier position. The Department of Health remained opposed to the project.

HEL’s merits appeal raises several key issues for determination by the Court. These include impacts of the SEOC mine on the health of nearby residents as a result of dust emissions (PM10 and PM2.5), loss of Aboriginal cultural heritage, reduced agricultural productivity, impacts on land quality, threats to key water resources, and the economic justification for the project. The parties have filed expert evidence on each of these issues. The experts will also be required to present evidence to the Court during the hearing.

The Hunter Environment Lobby Inc v Minister for Planning and Ashton Coal merits appeal was heard in the Land and Environment Court over two weeks, starting on 2 September 2013 in Sydney.  The Court visited the Ashton Coal's South East Open Cut mine site at Camberwell in the Hunter Valley on 3 September, and heard from objectors to the mine at Singleton Local Court on 4 September 2013.  The case returned to Sydney on Friday, 6 September 2013 until Monday 16 September 2013 with the hearing of evidence on impacts from the mine on human health, agriculture, Hunter River water resources, economics, Aboriginal heritage and the mining of the historic Camberwell Common. The Court has reserved its judgment.

EDO NSW is grateful to barristers Robert White and Corrina Novak who are acting as counsel for HEL.

Friends of Malua Bay v Perkins & Eurobodalla Shire Council

EDO NSW acted for Friends of Malau Bay in this legal challenge against approval of an application by Mr Perkins for subdivision of 30 lots on land in Malau Bay, near Bateman’s Bay.

The community group claimed that the Council had failed to consider certain sections of its own Rural Local Environment Plan 1987 (LEP) that should have been considered before the approval was granted. In particular, Clauses 11 and 23 of the LEP. A key issue in the case was whether the Council had given consideration to the impact of the development on patterns of land use in the Urban Expansion zones.

The case was heard on 13 June 2013 before Justice Craig of the Land and Environment Court, and judgment has been reserved.

EDO NSW is grateful to barrister Fenja Berglund who acted as counsel for the Friends of Malau Bay in this case.

Northern Inland Council for the Environment v Minister for Environment (Maules Creek and Boggabri Mine Cases)

The Northern Inland Council for the Environment (NICE) is challenging Commonwealth approvals for two coal mines in the Leard State Forest near Boggabri.

One is the proposed new Maules Creek mine, owned by Whitehaven, the other is an expansion of the existing Boggabri Mine, owned by Idemitsu.

If they go ahead, the proposals will result in the clearing of over 600 hectares of the critically endangered Box Gum Woodland, as well as loss of habitat for the endangered Swift Parrot, the endangered Regent Honeyeater, the vulnerable Greater Long-eared Bat, and the endangered climbing plant species Tylophera linearis.

A key ground of challenge is that the Commonwealth Minister for Environment breached the EPBC Act by allowing his decision to be influenced by the release of commercially sensitive correspondence by the NSW Government.

The two approvals also rely heavily on offsets to compensate for significant impacts on endangered communities and threatened species. NICE argued that the Minister made a legal error by not requiring independent verification of the offsets before the approval was granted. NICE also argued that the Minister failed to take into account approved conservation advices for listed threatened species and ecological communities.

These two cases were heard by the Court of Appeal on September 16, 17 and 18. A judgement is pending in the case.

EDO NSW is grateful for the assistance of barristers Sarah Pritchard SC and Craig Lenehan who are acting as counsel for NICE. 

Southern Highlands Coal Action Group v Minister for Planning & Infrastructure & Boral Cement Limited

Berrima coal mine expansion may go back before the Court (29/11/13)
The Land and Environment Court today overturned a previous decision refusing a coal mine expansion in Sydney’s drinking water catchment.

A Judge of the Land and Environment Court today upheld an appeal by Boral Cement and the NSW Government against the previous decision by Commissioners of the Court to refuse the proposal to double coal output to 460,000 tonnes from its mine near Berrima, in the Southern Highlands.

The case against the mine expansion was bought by the Southern Highlands Coal Action Group, due to concerns about the impacts on groundwater and biodiversity, and the Wingecarribee River in Sydney’s drinking water catchment. The community group was represented by EDO NSW.

The Judge today ordered the matter go back to different Commissioners to determine the matter again. The Judge also emphasised in the decision that new Commissioners may well come to similar conclusions as the previous Commissioners who had refused the project.

Earlier this year, Boral Cement announced it would be stopping production at the Berrima colliery and putting the mine in a “care and maintenance” mode.

Case summary Judgment