Current Cases

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

Regent Honeyeater by Dean Ingwersen/Birdlife AustraliaEDO 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.

 

Bulga Milbrodale Progress Association Inc. ats Warkworth Mining Limited & Ors

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 today 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.

Judgment    Appeal Judgment

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.

Maules Creek Community Council v Whitehaven Coal

EDO NSW, on behalf of the Maules Creek Community Council Inc (MCCC), 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, 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.

These species include bats, which hibernate in winter and large forest owls, whose key breeding season is winter. Threatened bird and bats species breed in spring including; the Little Eagle, Little Lorikeet, Turquoise Parrot, Yellow-bellied Sheath-tailed Bat, and South-Eastern Long-eared Bat. They will have eggs in the nest or dependent young during November and December.

Whitehaven Coal sought to amend its Biodiversity Management Plan to allow clearing the forest through winter because it was behind in its mining development plans. The Department of Planning allowed Whitehaven’s amendment. MCCC is arguing that amendment was invalid.

Shortly before a judgment was due, following the hearing of the injunction application, Whitehaven instead gave an undertaking to the Court to halt the clearing until a judgment following a full hearing on the legality of the Biodiversity Management Plan, which is expected in early September.

EDO NSW and its client Maules Creek Community Council Inc and its many supporters from far and wide wish to sincerely thank Mr Tom Howard Senior Counsel and Mr James Johnson of Counsel 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

A local farming group Mullaley Gas and Pipeline Accord Inc (MGPA), represented by  EDO NSW, has applied to the Land and Environment Court for a preliminary discovery order for any relevant information held by coal seam gas company Santos, relating to the contamination of water bores on a farmer’s property, near the Pilliga Forest in north-west NSW.

The MGPA are seeking a court order requiring Santos to provide any data, documentation or other information relevant to potential groundwater contamination in and around the property, near Narrabri.

The action follows the contamination of a household bore 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 deny any responsibility for the contamination but the MGPA said water testing and expert scientific advice identifies CSG activities as a possible source.

Any relevant information held by Santos may 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).