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
EDO 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
On 22 April 2013 Warkworth Mining Limited (Warkworth) appealed to the NSW Court of Appeal the decision of the Chief Judge of the NSW Land and Environment Court handed down on 15 April 2013 to refuse the Warkworth open cut mine extension project.
EDO NSW is representing the Bulga Milbrodale Progress Association in the NSW Court of Appeal.
Warkworth was seeking to substantially expand its existing open cut mining operations by adding through further open cut mining an additional 18 million tonnes of coal per year to its operations. The expansion would bring the mine closer to Bulga village and would have allowed the mining of part of a biodiversity offset that was required to be protected by Warkworth as a condition of the existing open cut approval granted in 2003, which allows mining till 2021. The biodiversity offset, as well as providing habitat for threatened flora and fauna, acts as a buffer between the village of Bulga and the existing open cut mine.
The Court concluded that the expansion would have significant and unacceptable impacts on biological diversity, particularly on endangered ecological communities as well as unacceptable noise and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the mine extension should not go ahead. Read the judgment by clicking the link below.
The appeal by Warkworth and the cross appeal by the Minister for Planning and Infrastructure have alleged that the Chief Judge made errors of law in finding that the expansion to the mine should be refused. The appeal was heard in the NSW Court of Appeal on 14,15 & 16 August 2013, and judgment has been reserved.
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.
Fullerton Cove Residents Action Group Incorporated v Dart Energy Limited & NSW Department of Trade and Investment, Regional Infrastructure and Services
EDO NSW acted for Fullerton Cove Residents Action Group (FCRAG) in a challenge to Dart Energy’s proposal for the drilling of coal seam gas exploration wells at Fullerton Cove near Newcastle. The Pilot Appraisal Exploration Program (PAEP) is for two vertical wells drilled into two separate coal seams, with four lateral wells, two in each coal seam. The PAEP includes the continuous pumping of water out from the coal seams (16,000 Litres per day) for 12 months, allowing the gas to flow. It is to be located on a floodplain zone, in a high water table area, near an internationally-listed RAMSAR wetland.
FCRAG argued that the PAEP is high-impact development, and Dart should have prepared a full Environmental Impact Statement (EIS), and be subject to the formal public consultation processes under Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). FCRAG also argued that the PAEP was not properly assessed under Part 5 of the Act, particularly in relation to potential impacts on groundwater, threatened species and ecological communities. In particular, the Department of Trade and Investment had not been provided with any groundwater assessment by Dart before approving the project.
On 5 September 2012, FCRAG was successful in obtaining an injunction restraining Dart Energy from drilling the wells until the main case had been decided. The injunction was necessary because Dart refused to agree to stop work while the case was on foot. In delivering judgment, Justice Sheahan found that FCRAG had a reasonably arguable case, and that damages would not be an adequate remedy if the injunction was refused and significant environmental harm was caused beneath the surface. His Honour recognised that this was a public interest case, and as such, FCRAG was not required to provide any undertaking as to damages.
The main proceedings were heard in the Land and Environment Court on 15-19 October 2012 before Justice Pepper. On 28 March 2013, Justice Pepper dismissed FCRAG’s case, delivering a 339 paragraph judgment on the legal and factual issues. The Court found that although there was no consideration of any groundwater assessment, the Department had complied with its requirements to consider environmental impacts “to the fullest extent possible” under s111 of the EPA Act. Her Honour took into account the fact that this was a pilot project, and the Department had general knowledge of the geology of the area, and information collected in reports for nearby exploration wells. Justice Pepper also found that there was no failure to consider biodiversity impacts, as the Department had “general regard” to the seven-part test for threatened species under section 5A of the Act.
The Court agreed with FCRAG’s view that the decision as to whether or not an activity is likely to have a significant impact is one that should be determined objectively by the Court, regardless of any opinion formed by the Department under Part 5 of the Act. However, Justice Pepper found that in this case, the project was not likely to have a significant effect on the environment, and that therefore no EIS was required.
The Department pursued its costs of the case from FCRAG, claiming that the case was not brought in the public interest. Dart Energy did not pursue its costs. FCRAG requested the Court to not make a costs order against them under Rule 4.2 of the Land and Environment Court Rules 2007, on the basis that the case was brought by them in the public interest. The Court refused to award costs to the Department, saying that FCRAG's case ‘epitomises the very concept of litigation properly brought in the public interest'. The Court also ordered the Department to pay FCRAG's legal costs in relation to the Department's cost application.
EDO NSW is grateful to barristers Ian Hemmings and Verity McWilliam for their assistance with this matter.
Judgment - Application for injunctive relief
Judgment - Regarding costs
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 vunerable 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.