Current Cases

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

Robert Williams v Rodney John Graham & Others, Cedar Point Quarry

Gidubul Elder Robert Williams, represented by EDO NSW, is seeking to protect Aboriginal cultural heritage from being destroyed by works at the Cedar Point Quarry near Kyogle, in northern NSW.

Mr Williams is concerned that development at the Cedar Point Quarry site will harm a sacred site that contains part of a men’s ceremonial site, including burial grounds and areas where tools were made.

Under the National Parks and Wildlife Act 1974 it is an offence to harm Aboriginal objects without an Aboriginal Heritage Impact Permit issued by the NSW Office of Environment and Heritage. 

The quarry was approved in 2012, but no Permit has been granted. Mr Williams’s evidence sets out his traditional knowledge and belief that the quarry site contains sacred Aboriginal areas and objects. The quarry company has begun preparatory works and our client is concerned that the significant sites have been affected.

On 7 September 2016, we filed proceedings in the Land and Environment Court on behalf of Mr Williams asking the court to stop works at the quarry. The Court granted an injunction, ordering work to stop at the quarry until November 2016 (when a final hearing will take place), or until a Permit is obtained. The Court also ordered the quarry company and land owners to allow Mr Williams and an expert archaeologist to access the quarry site to carry out an inspection.

The matter is scheduled for a hearing on 14 to 15 November 2016.

We are grateful to barristers Craig Leggat SC and Trent March for their assistance in this matter.

EDO NSW is committed to using our expertise, professionalism and deep commitment to assist and stand with our Aboriginal clients as they protect and promote their Country, culture and heritage through law. Read more about our work with Aboriginal communities.

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Millers Point Fund Inc v Lendlease Millers Point Pty Ltd & others

We are acting for a community group, Millers Point Fund Inc, in its challenge to decisions by the NSW Planning Assessment Commission (PAC) on the Crown Casino development at Barangaroo in Sydney.

This is a complex case that relates to the approvals process, and subsequent modifications, through which the casino has come to be located on land that had been set aside as public parkland. The community group argues that the PAC did not apply the law properly when approving the casino’s location. 

Background on the approvals process
The Barangaroo development site’s Concept Plan was first approved in 2007. It has been modified many times since. The Concept Plan approval sets out the general layout, land use and size of the buildings and other parts of the redevelopment of the Barangaroo site.

The Concept Plan preserved an area on the foreshore of Sydney Harbour as a publicly accessible park.

However, on 28 June 2016, the PAC approved a modification to the Concept Plan (MOD 8) in which one of the proposed buildings – described as a ‘landmark building’ on a pier in the Harbour – was moved onto the foreshore area designated for the public park. Under this version of the Concept Plan the park was moved between the landmark building and Hickson Road, away from the waterfront. The scale of the landmark building was also increased, and it was approved for use as a casino.

On the same day, the PAC approved a separate state significant development application for the Crown Sydney Hotel Resort on the site of the landmark building.

Many members of the community objected to placing the proposed Crown Sydney Hotel Resort on what had previously been set aside as publicly accessible parkland on the harbour foreshore. City of Sydney Council argued strongly that the Crown Hotel Resort Sydney should be pushed back to Hickson Road, to allow the park to remain on the foreshore.

In response, the PAC said that it was sympathetic to these views but the NSW Parliament had effectively determined the location of the Crown Sydney Hotel Resort when it passed amendments to the Casino Control Act 1992 in 2013. These amendments allowed for a casino licence on the area of the waterfront where the Crown Sydney Hotel Resort was approved by the PAC under MOD 8. 

The case
In its legal challenge, our client says that both decisions – to approve the modifications to the Concept Plan, and to grant development consent to the Crown Sydney Hotel Resort building – were invalid. They argue that the PAC was required under law to decide whether or not to approve the location of the Crown Sydney Building by reference to the Environmental Planning and Assessment Act 1979, untainted (or in legal terms ‘unfettered’) by the location determined under the Casino Control Act 1992.

Our client says that the provisions of the Casino Control Act 1992 only relate to licensing of a casino: they are not intended to override any of the planning law controls for physically building a casino.

By tying itself to the location specified under the Casino Control Act 1992, our client says the PAC breached the law by not properly exercising its planning law powers. 

The case will be heard in the Land and Environment Court from 15 to 18 November 2016.

We are grateful to barristers Michael Hall SC, Mark Seymour, Craig Lenehan and Jane Taylor for their assistance in this matter.

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Quipolly Water Action Group Inc v NSW Department of Primary Industries Water

We are acting on behalf of community group Quipolly Water Action Group against a NSW Department of Primary Industries Water (DPI Water) decision to refuse to release documents relating to the regulation of groundwater at the Werris Creek coal mine. The mine is located in north-west New South Wales near the Liverpool Plains and is owned by Whitehaven Coal.

DPI Water refused access to the documents on how the mine’s groundwater is being regulated because it decided that the documents are ‘commercial’. On behalf of our client, we requested the NSW Information Commissioner to review this decision. The Commissioner agreed that DPI Water’s decision was 'not justified'. However, the Commissioner’s decision is not binding, and DPI Water continues to refuse to release the documents to our client.

We have now taken this case to the NSW Civil and Administrative Tribunal (NCAT), whose decision on whether the documents should be released will be binding.

Our client will argue in NCAT that the documents are not commercial, in the legal sense, and that it is in the public interest to release these documents.

Groundwater is a critical shared resource. It is important that the community knows what impact mines are having on groundwater and how the government is regulating such impacts.

If we win this case, the community will gain insight into how DPI Water is regulating the impacts of this and other coal mines in NSW.

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Quipolly creek near the mine, dried up

A dried up section of Quipolly Creek near the Werris Creek coal mine

Western Downs Alliance v Minister for the Environment & Santos Limited

We are acting for Western Downs Alliance in its challenge to a decision by the Federal Minister for the Environment to approve the Santos GLNG Gas Field Development Project in Queensland.  

This is the first CSG case brought under national environmental laws to challenge the application of the Water Trigger, and is an important test case.

The Minister’s approval allows Santos to develop 6,100 coal seam gas (CSG) wells across approximately 1 million hectares of land in the Surat Basin in South-Central Queensland. This represents a substantial expansion on the 2,650 CSG wells approved for an overlapping (but significantly smaller) area in 2010.

Over the project’s predicted life of more than 30 years, Santos is proposing to extract up to 219 billion litres of water, with potential impacts on the Great Artesian Basin. The Environmental Impact Statement (EIS) for the project outlines proposed methods of managing the extracted water, one of which is to release water from the wells into surface water systems such as rivers and lakes.

Western Downs Alliance argues that the approval of the project was unlawful because the Minister did not properly assess the project’s impacts on surface water.

The EIS notes that the project is likely to have a number of surface water impacts, including:

  • increased sedimentation;
  • erosion of stream banks;
  • surface water contamination, including toxicity to aquatic ecosystems; and
  • altered surface water flow.

In November 2014, the Independent Expert Scientific Committee, which was set up in 2012 to provide scientific advice to decision makers on the impact that coal seam gas and large coal mining development may have on Australia's water resources, advised the Minister that there is ‘considerable scientific uncertainty about potential impacts [of this project] on surface water and groundwater and associated ecosystems’. The Committee specifically stated that the potential impacts of discharging water into the Dawson River, including ecological impacts, should be assessed.

This case raises the question of what is required of the Minister under the ‘Water Trigger’, which was added in 2013 as a ‘matter of national environmental significance’ to Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Under the Water Trigger, any proposed CSG development that has, will have, or is likely to have a significant impact on a water resource requires comprehensive assessment and approval at a national level by the Minister under the EPBC Act.

Western Downs Alliance argues that the Minister incorrectly formed the view that it was not necessary to assess the impacts of releasing CSG water to surface waters as part of the project approval, and that as a result the approval was unlawful.

A directions hearing has been scheduled for Wednesday 23 November in Sydney. The final hearing is scheduled for Monday 13 February 2017, before a Full Bench of three judges of the Federal Court in Brisbane.

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

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People for the Plains v Santos and Others

People for the Plains, represented by EDO NSW, is seeking an injunction in the NSW Land and Environment Court to prevent Santos from developing its 'Leewood' coal seam gas (CSG) wastewater treatment facility without first undertaking the proper planning and environmental assessment. The facility will be located near the Pilliga State Forest, near Narrabri in North-West NSW.

On 1 August 2016, the Land and Environment Court determined that the Leewood facility's approval was valid, meaning that the facility can now begin operation. On 29 August 2016, we lodged an appeal of this decision on behalf of our client. For more about the appeal, read our media release, Community group appeals decision to allow CSG water treatment facility to operate near Narrabri.

The Leewood facility will form one component of Santos's Narrabri Gas Project, and would treat over one million litres of toxic CSG wastewater each day.

In August 2015 the NSW Department of Industry approved the Leewood project through an amendment to the operational plan for Santos’ petroleum exploration in the area. People for the Plains argues that this approval is invalid because the Leewood project should have been assessed as an independent project, not as part of the company’s exploration work.

The Leewood project is best characterised as a waste or resource management facility, not a petroleum exploration project. Waste or resource management facilities need development consent under the NSW Government's State Environmental Planning Policy (Infrastructure) 2007. Santos avoided the need to obtain development consent by characterising the Leewood project as part of its broader petroleum exploration activities.

The development consent process for water treatment facilities is more rigorous and transparent than the process for petroleum exploration activities. It would require Santos to obtain an Environmental Impact Statement for the project, which would need to go on public exhibition for at least 30 days, giving the community a chance to have their say about the impacts of the proposal. It would also mean that, if the project is approved following this process, objectors would have the right to appeal this approval on the merits of the project in the Court.

We are grateful to barristers James Johnson and Simon Chapple for their assistance in this matter.

For more on this case:

 

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4nature Inc v Centennial Springvale Pty Limited and Others

On 13 September 2016 the NSW Land and Environment Court found the approval for an extension to Centennial Coal’s Springvale coal mine underneath the Newnes State Forest in the Blue Mountains was lawful.

The extension was approved by NSW Planning Assessment Commission (PAC) in September 2015, and allows the mine operator to discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment.

On behalf of 4nature Inc, EDO NSW launched landmark legal action against a decision by the PAC to approve an extension to the Springvale coal mine underneath the Newnes State Forest in the Blue Mountains.

The approval will allow the mine operator – Centennial Coal – to extract 4.5 million tonnes of coal per year for a further 13 years and discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment. 

This was the first case to test laws passed in 2009 that were introduced to protect Sydney’s drinking water catchment.

The Springvale mine will discharge millions of litres of highly saline mine water every day into the Coxs River, which flows into Lake Burragorang – Sydney’s major drinking water reservoir. Water discharged from the mine also contains nitrates, phosphates, zinc, nickel and other contaminants.

4nature took the owners of the mine (Centennial Springvale Pty Limited and Springvale SK Kores Pty Limited) and the Minister for Planning to the NSW Land and Environment Court in a challenge to the approval.

In 2009, the NSW Government introduced laws designed to protect Sydney’s drinking water catchment. Under those laws, a development cannot be approved unless the consent authority is satisfied that the development will have a ‘neutral or beneficial’ effect on water quality.

4nature argued that there was no evidence the PAC was satisfied the project would have a neutral or beneficial effect on water quality, which 4nature contended would be very difficult given the volumes of mine water the mine will discharge into the river system each day. As such, 4nature argued that the PAC’s approval of the project was unlawful.

The case was heard in the NSW Land and Environment Court on 9-10 May 2016. Judgment was handed down on 13 September 2016 dismissing 4nature's case.

EDO NSW is grateful to barristers Richard Lancaster SC and Nicholas Kelly for their assistance in this matter.

Additional information
Centennial Coal is facing a number of legal challenges relating to the water impacts of its coal mining operations in the Blue Mountains. Recently, the NSW Environment Protection Authority (EPA) launched a ‘Tier 1’ prosecution against the company’s Clarence Colliery for an incident that released hundreds of tonnes of coal material into the surrounding environment, with coal slurry entering the Wollangambe River that flows into the Blue Mountains World Heritage Area.

Tier 1 offences are the most serious under the Protection of Environment Operations Act 1997 and come with a maximum penalty of $2m for corporations.

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