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.

Residents Against Intermodal Development Moorebank Inc v NSW Minister for Planning and Qube Holdings Ltd

Community group Residents Against Intermodal Development Moorebank (RAID), represented by EDO NSW, has appealed to the Land and Environment Court to protect a critically endangered ancient plant species thought to be extinct for almost 200 years.

RAID is asking the Land and Environment Court to undertake a full reconsideration of the approval of the large industrial shipping container facility at Moorebank, in Western Sydney, because the critically endangered Hibbertia fumana, thought to be extinct but recently rediscovered in the area of the development, wasn’t considered when the development was approved in December last year.

The Hibbertia fumana was rediscovered in the vicinity of the proposed terminal only 2 months before the Moorebank development was approved. The facility is a major development expected to process 1.5 million shipping containers every year.

In December 2016, the Planning Assessment Commission (PAC) approved the development, but was not told about the existence in the area of the rediscovered species, or the impacts that the development may have on the species.

Just four days after the PAC approved the development, the NSW Scientific Committee publicly listed the rediscovered species as critically endangered. 

Hibbertia fumana, a delicate shrub with yellow flowers, was last documented in 1823 and was thought to be extinct. The Moorebank area where the development is located is the only known population of Hibbertia fumana.

Biodiversity is essential for a prosperous economy and healthy environment, but as a nation we are not doing enough to protect it. The State of the Environment Report tabled in Parliament by the Commonwealth Government in March 2017 paints a worrying picture of the rapid decline of threatened species in Australia: “The outlook for Australian biodiversity is generally poor, given the current overall poor status, deteriorating trends and increasing pressures.”

Threatened species are being pushed to extinction development by development, a phenomenon often referred to as ‘death by a thousand cuts’. It is critical to determine whether or not this development will bring about one more extinction.

Our client is asking the Land and Environment Court to undertake a full reconsideration of the SIMTA development approval, including the potential impact on the Hibbertia fumana, and the community more broadly. This is a ‘merits appeal’ based on the public’s interest in protecting critically endangered species and protecting biodiversity.

We are grateful to barristers Andrew Pickles SC and Dr James Smith for their assistance in this matter.

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Hibbertia fumana flower


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Humane Society International v Department of the Environment and Energy

Our client, Humane Society International (HSI), is seeking access to documents held by the Australian Department of the Environment and Energy on the adequacy of NSW’s biodiversity offsets policy for major projects ('the Policy').

HSI argues that the public has a right to know why the Australian Government believes, despite evidence to the contrary, that the NSW Policy meets national standards. On behalf of HSI, we are asking the Administrative Appeals Tribunal to find that it is in the public interest to release the documents under Freedom of Information laws. 

Background

Biodiversity offsets have become standard practice in the approval and assessment of major developments in Australia, even though there is little evidence that offset schemes achieve their intended purpose of protecting threatened species from extinction.

Biodiversity offsets allow developers such as mining companies to buy/manage land, or pay money into a fund, to compensate for the clearing of forests and areas containing threatened plants and animals.

Community groups such as HSI are concerned that the method for calculating biodiversity offsets in NSW, contained in the NSW Policy, does not properly protect the environment – including the plants and animals on the national list of threatened species and ecological communities.

The Australian Government, which is responsible for the national list of threatened species – and has international obligations to protect and conserve biodiversity in Australia – has stated that the NSW Policy meets national standards of environmental protection. However, analysis by EDOs of Australia shows clearly that the NSW policy provides weaker environmental protection than required under national environment policies.

With the Australian Government delegating more and more development approval powers to the states and territories under its ‘one stop shop’ policy, community groups fear that there will be fewer protections for our nationally threatened species and ecological communities.

HSI is therefore seeking access to documents detailing the Australian Government’s analysis of the NSW Policy. Access to this information is vital for the public to have confidence that important environmental protections are not being eroded.

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Koala


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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.

Link to this case summary.


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

We acted 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 was a complex case that related to the approvals process, and subsequent modifications, through which the casino came 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, and was modified many times after approval. The Concept Plan set 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.

Our client said that the provisions of the Casino Control Act 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, 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.

Costs decision confirms the public interest
In cases such as this, it is usual for the losing party to be ordered to pay the other sides’ legal costs.

We argued that Millers Point Fund should not have to pay the other parties’ costs because the case was brought in the public interest. The Court agreed, ruling that the matter could be characterised as public interest litigation because:

  • it concerned a broad sector of the community beyond local residents;
  • it involved public law obligations;
  • the prime motivation for initiating the proceedings was to enforce public law obligations regarding the development of public land; and
  • the applicant had no pecuniary interest in the proceedings.

As a result, each party to the proceedings will pay their own legal costs.

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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