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.

Millers Point Community Association Inc. v Government Property NSW and others – Sirius Building

We are representing community group Millers Point Community Assoc. Incorporated, to challenge the decision made by the NSW Minister for Heritage 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 Government 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 is challenging 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 argues 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.

We are asking the Land and Environment Court to declare the Minster’s July 2016 decision not to list the building invalid, and call on the Minister to consider the Sirius Building for State Heritage Register listing as required under the Heritage Act.

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.

The case is scheduled to be heard in the NSW Land and Environment Court from Thursday 6 to Friday 7 April 2017.

We are grateful to barristers Bruce McClintock SC and Shane Prince 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. Our appeal of this decision was heard in the Court of Appeal on Tuesday 1 November 2016. Read more.

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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Millers Point Fund Inc v Lendlease Millers Point Pty Ltd & others – Crown Casino at Barangaroo

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 argued 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 said 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 argued 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 said 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 said the PAC breached the law by not properly exercising its planning law powers. 

Judgment
On 23 December 2016, the Land and Environment Court delivered its judgment upholding the State Significant Development consent and modification to the concept plan, allowing the Casino to be built on the foreshore at the site. Read the judgment.

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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4nature Inc v Centennial Springvale Pty Limited and Others

Community group 4nature, represented by EDO NSW, is appealing a NSW Land and Environment Court decision that will allow Springvale coal mine in the Blue Mountains to discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment.

Springvale coal mine, operated by Centennial Coal, lies beneath the Newnes State Forest in the Blue Mountains. In September 2015, the NSW Planning Assessment Commission (PAC) approved an extension to the mine operations.

On behalf of 4nature Inc, EDO NSW launched landmark legal action in the NSW Land and Environment Court, arguing that the approval was unlawful because the PAC could not be satisfied the development will have a ‘neutral or beneficial’ effect on water quality in the catchment – a standard introduced by the NSW Government in 2009 specifically to protect Sydney’s drinking water catchment.

On 13 September 2016 the NSW Land and Environment Court found the PAC’s approval was lawful. 4nature is now appealing that decision in the Court of Appeal.

Background

The PAC’s approval will allow Centennial Coal to extract 4.5 million tonnes of coal from the Springvale mine every year for a further 13 years. Millions of litres of highly saline mine water will be discharged 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.

This was the first case to test laws passed in 2009 that were introduced 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.

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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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With your support, we can continue to help community groups like 4nature defend the environment. Please make a donation today.


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