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 an area of forest which is habitat to a critically endangered bird species, the Regent Honeyeater.
The site where the development is proposed contains approximately 3.2 hectares of 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.
The next hearing date for the matter is October 29-30 in the Land and Environment Court in Sydney.
EDO NSW is grateful to barristers Jason Lazarus and Josie Walker who will act as counsel for Friends of Tumblebee in this matter.
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc
The NSW Court of Appeal has 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 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.
Hunter Environment Lobby v Minister for Planning & Ashton Coal Operations Limited
Hunter Environment Lobby v Minister for Planning & Ashton Coal Operations Limited
The Hunter Environment Lobby (HEL) appealed against approval by the NSW Planning Assessment Commission (PAC) for Ashton Coal’s South East Open Cut (SEOC) coal mine project at Camberwell, near Singleton, in the Hunter Valley.
The community group’s merits appeal raised key issues for determination by the Court. These included impacts of the mine expansion on the health of nearby residents as a result of dust emissions (PM10 and PM2.5), loss of Aboriginal cultural heritage, reduced agricultural productivity, threats to key water resources, and the economic justification for the project.
The Land and Environment Court, on August 27, found that approval of the project could be granted but left a number of conditions undetermined including those relating to air quality, water resources and acquisition of properties. A hearing date for submissions about the conditions for the coal mine expansion has been set down for October 28.
The Land and Environment court judgment stated that: “On balance I consider that approval can be granted but that approval must be subject to adequate conditions about which a number of issues of clarification and possible alteration remain.”
The court found that the mine expansion would have negative economic impacts on neighbouring rural properties including a farm which has been in the same family since the 1830’s, one of the oldest farming families remaining in the Upper Hunter.
The court acknowledged the difficulty in weighing up the economic benefits against the social and environmental impacts on the village of Camberwell including the loss of social cohesion in a town already significantly impacted by mining.
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.
EDO NSW is grateful to barristers Robert White and Corrina Novak who are acting as counsel for HEL.
Maules Creek Community Council v Whitehaven Coal
EDO NSW, on behalf of the Maules Creek Community Council Inc (MCCC), on 6 June this year sought an injunction in the NSW Land and Environment Court to stop Whitehaven Coal from clearing the high conservation value Leard State Forest during winter when animals are hibernating and during spring when threatened bird and bat species are breeding.
The basis of the case was that the Biodiversity Management Plan (BMP), required under the approval for the Maules Creek Open Cut Coal Mine, stated that any clearing of the forest ought to be done outside of the winter and spring months. This was to allow the threatened species in this forest a fighting chance to survive the clearing of their habitat.
Whitehaven Coal sought to amend its BMP to allow clearing the forest through winter for the first year of its mining operations because it was behind in its mining development plans. The Department of Planning allowed Whitehaven’s amendment. MCCC argued that the amendment was invalid based on a failure to consult designated stakeholders and therefore the clearing that was taking place was unlawful.
The BMP is a legal document that provides for the management of biodiversity over the 22 year life of the mine. The mine will clear 1664 hectares of forest which provides habitat for species threatened with extinction including bats, birds, koalas, reptiles and forest owls. An area of 544 ha of this forest is a critically endangered ecological community. It is listed nationally as critically endangered and therefore it is facing an extremely high risk of extinction in the wild in the immediate future.
Shortly before a judgment was due on 12 June, following the hearing of the injunction application, Whitehaven gave an undertaking to the Court to halt the clearing until a judgment following a full hearing on the legality of the BMP, which was expected in early September.
Whitehaven subsequently lodged a new Biodiversity Management Plan (BMP), which if approved, is likely to remove the grounds for the Maules Creek Community Council (MCCC)’s legal challenge to the BMP which allowed winter and spring clearing of the Leard State Forest.
The new BMP is currently being assessed by the Department of Planning and, if approved in its current form, will allow Whitehaven to resume clearing of the Leard State forest from 1 November, during the spring breeding season of threatened birds and bats.
On September 8 the Land and Environment Court declined to grant Whitehaven any change to its original undertaking on when it could resume clearing. Whitehaven argued in Court that if the Secretary of the Department of Planning approved the BMP then it should no longer be bound by its undertaking to wait for a final Court decision.
MCCC’s legal counsel, Tom Howard, SC, assisted by James Johnson, argued that Whitehaven should be bound by its original commitment to the court until the case is finalised.
The case was deferred until September 12 and has now been deferred again until October 28.
EDO NSW and its client Maules Creek Community Council Inc and its many supporters from far and wide wish to sincerely thank Mr Howard SC and Mr Johnson for their able assistance in this matter.
Michael Ryan v The Minister for Planning, Lismore City Council & others
EDO NSW is acting for Michael Ryan, an Aboriginal elder, in judicial review proceedings challenging the removal of proposed environmental zones, containing Aboriginal Heritage sites and habitat for threatened plants and animals, from parts of the Lismore Local Environmental Plan (LEP) dealing with development on the North Lismore Plateau, in the Northern Rivers region.
The LEP Amendment, approved by the Department of Planning, removed the environmental zones which had originally been proposed to comprise 28.5 per cent of a 255 ha North Lismore Plateau site. It also rezoned 67% of the area as residential and the majority of the rest remaining as primary production.
These environmental conservation and environmental management zones had been included in the original proposal for the LEP Amendment, as publicly exhibited by Lismore City Council. They were intended to protect Aboriginal heritage sites and areas of environmental value, including regenerating lowland sub-tropical and dry rainforest, which provide habitat for threatened fauna, such as koalas, the Rose-crowned Fruit-dove, and threatened microbat species, as well as sites containing the rare native plant species, Thorny Pea and Hairy Joint grass.
The environmental zoning had been removed, apparently due to the Department of Planning’s ongoing review of the use of environmental zoning by councils in northern NSW.
Mr Ryan objects to the removal of the environmental zoning due to its potential impact on the cultural heritage and environment of the North Lismore Plateau. The basis of his objection relates primarily to the fact that the LEP Amendment was fundamentally different to the original proposal, as publicly exhibited.
Mr Ryan argues that, in the circumstances, the LEP Amendment was not a product of the process set out in the Environmental Planning and Assessment Act 1979 for the making of Local Environmental Plans, and given that no opportunities for public consultation were provided in regard to the fundamentally altered LEP Amendment, there has been a failure to provide procedural fairness.
The matter is likely to be listed for hearing later in the year in the Land and Environment Court in Sydney.
EDO NSW is grateful to barristers Philip Clay SC and Natasha Hammond who will act as counsel for Mr Ryan in this matter.
Mullaley Gas and Pipeline Accord Inc v Santos
Coal seam gas (CSG) company Santos agreed on September 1 in the NSW Land and Environment Court to provide water monitoring data after legal action by farmers seeking information relating to the contamination of water bores on a property in the Pilliga Forest, near Narrabri, in north-west NSW.
On May 21 this year, the local farming group, Mullaley Gas and Pipeline Accord Inc (MGPA), represented by environmental legal centre, EDO NSW, applied to the Land and Environment Court for a preliminary discovery order for any relevant information held by Santos. The company had previously refused to provide all these documents.
The action follows the contamination of freshwater bores on the property of a farmer, whose land adjoins a site used for exploratory CSG drilling. He was advised by Santos in 2012 that the bore water was unfit for drinking and domestic use. Another bore, closer to the CSG site, has also shown effects of possible contamination.
Santos now has until 31 October 2014 to comply with the court order to provide the requested data and documents relevant to potential groundwater contamination in and around the property, near Narrabri.
The Land and Environment Court issued an order, agreed by both parties, for Santos to provide a range of documents including;
- all test results from sampling of bores on the property with the contaminated bore, and expert advice to Santos about this testing;
- all test results from water and soil samples from a group of pilot CSG drilling sites, part of Santos’ Dewhurst CSG site, which are to the north of the property;
- all water quality testing results for groundwater samples and monitoring held by Santos taken from stock and domestic bores within a 4km radius of these CSG drilling sites; and
- All documents detailing the history of storage of wastewater produced at the Dewhurst CSG, site including reports on any leaks, spills or overflows.
Santos deny any responsibility for the contamination but the MGPA have said water testing and expert scientific advice identifies CSG activities as a possible source.
The information to be provided by Santos will assist the farmers group to decide whether to launch civil enforcement proceedings against the company for water pollution under the Protection of the Environment Operations Act 1997 (NSW).