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 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.

The matter is listed for hearing on August 20-21 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 today (April 7, 2014) 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.

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.

Southern Highlands Coal Action Group v Minister for Planning & Infrastructure & Boral Cement Limited

Boral to seek approval to permanently close mining operations at Berrima (Medway) Colliery

EDO NSW represents the Southern Highlands Coal Action Group, who brought a case against the NSW Government's 2012 approval of Boral Cement's mine expansion at Berrima Colliery in Sydney's drinking water catchment. The approval would have given Boral the authority to double its coal output from the Berrima Colliery to 440,000 tonnes per year, and continue its operations until 2020. The community group appealed the decision because of concerns about the impacts on groundwater and biodiversity, and the Wingecarribee River in Sydney's drinking water catchment.

The community group won the original case. The Court refused the expansion of the colliery as it was shown that impacts on the environment and the community would have been substantially adverse. However, the community then lost an appeal by Boral and the NSW Government against that decision, and so the matter was sent back to Court for a rehearing of the original case. This means that the parties would need to present their entire case again. However, Boral has released a statement indicating that it would seek approval from the State Government to permanently close its mining operations at the Berrima (Medway) Colliery. Boral's announcement may impact on these Court proceedings.

Read more about the original case and the appeal on our website. EDO NSW is grateful to barristers Mr Nick Eastman and Ms Natasha Hammond-Deakin (former EDO NSW Senior Solicitor) for their assistance with this matter.