Planning, Development & Heritage
EDO NSW has assisted communities throughout NSW in their efforts to protect the environment from unsustainable and inappropriate developments, and in their challenges to the approval of developments that would have a negative impact on the environment, including native plants and animals, water, public recreational areas, and coastal environments.
Ashley v Richmond Valley Council
EDO NSW assisted Evans Head resident Dr Peter Ashley to obtain information about meetings between councillors of Richmond Valley Council and the developer of a controversial residential subdivision on sensitive coastal land at Evans Head.
Known as the Iron Gates residential subdivision, the site is an environmentally sensitive area bordered by the Evans River and Bundjalung National Park. It was the scene of ongoing protest action in the 1990s against Iron Gates’ proposal to construct some 650 houses. This proposal was approved by the local council. But when work on the site commenced, Iron Gates Pty Ltd breached its development consent by clearing native vegetation that was supposed to be protected, causing damage to habitat for threatened species.
In 1996, EDO NSW acted for Mr Al Oshlack in a case to stop the clearing, and in a landmark judgement the Court ordered a full remediation of the site as well as removal of roads and drains. But despite the Court’s orders, Iron Gates Pty Ltd never undertook these remediation works.
In 2014, Graeme Ingles, company director of the now defunct Iron Gates Pty Ltd, lodged a fresh application to develop the site under the name of a new company, Gold Coral Pty Ltd. Dr Ashely sought information from Richmond Valley Council about the details of meetings between Councillors and Mr Ingles.
While Council released details of meetings between Council staff and Mr Ingles, it maintained that records of Councillors’ meetings are not held by Council, and that Council’s function does not extend to inquiring into meetings held by Councillors. Dr Ashley sought a review of Council’s determination in the NSW Civil and Administrative Tribunal (NCAT) under the Government Information (Public Access) Act 2009 (GIPA Act).
A number of NCAT planning meetings led to Council agreeing to undertake further searches for the information, resulting in a fresh determination by the Council, which revealed that a meeting took place on 17 October 2014 between the Mayor, a Councillor, Council’s General Manager, and a number of other people, including Mr Ingles. This meeting was not disclosed in response to Dr Ashley’s original application, even though it involved a Council staff member (the General Manager). Details about the purpose of the meeting were not provided.
The NCAT proceedings revealed that Council did not conduct adequate searches in response to our client’s original request for access to information, and that the information about the October 2014 meeting should have been released under Dr Ashely’s original request.
We are grateful to barrister Alexander H Edwards for his assistance in this matter.
The site at Evans Head. Image: Echonet
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.
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.
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.
Analysis: the ever changing face of Barangaroo, blog 27 March 2017
Casino or Parkland? Community group fighting to save a public park planned for Sydney’s foreshore, media release, 14 November 2016
- Link to this case summary
Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and NSW Minister for Planning
EDO NSW represented local community group, Upper Mooki Landcare, in its legal challenge in the NSW Land and Environment Court to the approval of mining company Shenhua’s open cut coal mine on one of Australia’s most productive farming areas, the Liverpool Plains in north-western NSW.
On 19 February 2016 the Court dismissed our client's case, finding that the approval of the mine is valid. This means that the mine can go ahead subject to the conditions of the approval. Read the judgment.
If the mine goes ahead, it will lead to the clearing of 847 hectares of koala habitat.
These were judicial review proceedings arguing that the NSW Planning Assessment Commission (PAC), which approved the mine on behalf of the NSW Minister for Planning, failed to properly consider whether the mine was likely to significantly affect koalas, a threatened species, as required by the Environmental Planning and Assessment Act 1979 and the Threatened Species Guidelines.
The group contends that the PAC failed to assess whether the mine would place a viable local population of Koalas at risk of extinction, as required by NSW Environmental Planning and Assessment Act 1979.
Koalas are currently listed as vulnerable to extinction in NSW under State and Federal law after numbers dropped a third over the past 20 years. This means they are facing a high risk of extinction in NSW in the medium-term future.
The PAC stated: “The [Gunnedah Koala] population has reduced significantly, as a result of droughts and heatwaves, with the estimated reduction of up to 70% since 2009.”
The evidence before the PAC was widely varying in terms of the estimates of Koalas within the Gunnedah Local Government Area. Shenhua used population estimates of 12,753 animals for the entire Gunnedah Local Government Area. The Australian Koala Foundation estimates that there are only 800-1,300 animals in the Gunnedah Local Government Area.
The NSW Office of Environment and Heritage, in its submission to the mine assessment process, stated: “The assessment of significance [of impacts] for the Koala is totally inadequate. No details of the actual Koala population to be impacted upon, nor what impact the Project will have on the population is provided.”
The plan for managing the impact of clearing 847ha of the Koala habitat noted in the PAC’s report is that “the animals will be encouraged to naturally move away from the habitat that is being cleared. If the animals do not naturally move, then a translocation plan will be implemented”. There was evidence before the PAC that translocation programs have resulted in significantly high mortality rates.
A hearing took place from 31 August to 3 September in the NSW Land and Environment.
EDO NSW would like to thank barristers Patrick Larkin SC, Jennifer Stuckey-Clarke and Scott Nash for their assistance with the case.
Upper Mooki Landcare Group awarded Marie Byles Award
The Upper Mooki Landcare Group has won the Marie Byles Award at the 2015 NSW Environment Awards for their Land and Environment Court challenge to save the Breeza koalas on the site of Shenhua’s open cut Watermark coal mine on the Liverpool Plains. Congratulations Upper Mooki Landcare Group!
This award commemorates Marie Byles (1900-1979), the first female solicitor in NSW, and a passionate conservationist. This award is given to a group that has initiated an outstanding new environmental campaign and demonstrated strong commitment and passion for the conservation.
Image: Adi Firth
Ashton Coal Operations Limited v Hunter Environment Lobby & Minister for Planning
The Hunter Environment Lobby, represented by EDO NSW, successfully defended Ashton Coal’s appeal of a Court condition imposed on the company’s expansion of its coal mine near Camberwell in the Hunter Valley.
The Land and Environment Court found that, while approval could be granted for the expansion, the development could not start until Ashton purchased, leased or licenced Mrs Bowman’s property. This is because the project had been environmentally assessed on the basis that the open cut coal mine will totally consume Mrs Bowman’s property. The Court accepted that Ashton Coal needs Mrs Bowman’s property before it starts the project, both to access the coal, and to manage impacts to groundwater and surface water from the mine.
Ashton Coal appealed the decision in the NSW Court of Appeal. The Court dismissed the appeal in November 2015, meaning that Ashton Coal to needs to purchase, lease or licence Mrs Bowman’s property before it can start the project.
EDO NSW is grateful to barristers Robert White and Mark Seymour for representing the Hunter Environment Lobby in the Court of Appeal.
Wendy Bowman. Image: Dean Sewell
- Page for this case
Another win for the New South Wales environment! Coal mine expansion denied on appeal,
media release, 20 November 2015
- Land and Environment Court case and judgment August 2014
Headland Preservation Group Inc v Sydney Harbour Federation Trust & Ors
EDO NSW represented Headland Preservation Group Inc in its challenge to the approval of a private aged care facility on public land on the foreshore of Sydney Harbour. The group successfully secured an undertaking from the Sydney Harbour Federation Trust (the Trust), on a ‘without admission’ basis, that it would not issue any planning approval in relation to a proposal for a private development on public land at Middle Head in Sydney Harbour.
The group commenced Federal Court proceedings in March 2015 against the Trust, its Executive Director, and developer Middle Head Healthcare Pty Ltd, seeking judicial review of the Trust’s decision to approve a development by Middle Head Healthcare Pty Ltd of a private aged care facility on public land at 10 Terminal, Middle Head, on the foreshore of Sydney Harbour.
The group argued that the Trust, which is the public authority charged with protecting and managing Trust land in Sydney Harbour, failed to adequately consult with the Community Advisory Committee (CAC) and consequently failed to take into account the CAC’s advice and recommendations as required by the Sydney Harbour Federation Trust Act 2001 (Cth).
The group also argued that the decision was contrary to the objects of the Act and amounted to a breach of public trust.
In November 2015, EDO NSW successfully negotiated an undertaking from the Trust, on a ‘without admission’ basis, that it would not issue any planning approval or take any further actions in relation to the development proposal. Having secured the undertaking, the group discontinued their Federal Court proceedings against the Trust, its Executive Director and Middle Head Healthcare Pty Ltd by consent and on a ‘without admission basis’.
EDO NSW acknowledges and thanks barristers Peter Tomasetti SC and Natasha Hammond for their advocacy and advice in this matter.
Positive Change for Marine Life v Byron Bay Shire Council and Byron Preservation Association Inc
On behalf of Positive Change for Marine Life Inc (PCML), EDO NSW sought an urgent interlocutory injunction in the Land and Environment Court to stop Byron Shire Council constructing a rock wall on Belongil Beach.
Belongil Beach is a sensitive coastal environment that is subject to coastal erosion. The Belongil spit is a dynamic system. Over time surveys around the estuary have recorded eighty species of seabirds, shorebirds, waterbirds and other wetland associated birds, many threatened with extinction.
In 1988 Byron Council adopted a policy of ‘planned retreat’ which provides an adaptive management approach to coastal erosion, rising seas and development. The management of the Australian coastline and responses to coastal erosion have become increasingly important in the face of rising seas.
PCML argued that the construction of the rock wall is likely to significantly affect the environment. When a project is likely to significantly affect the environment, the law requires that an Environmental Impact Statement (EIS) is prepared and considered before any decision to undertake the project is made. An EIS is also required to be placed on public exhibition allowing members of the community to have a say. As at October 2015, no EIS had been prepared for the proposed rock wall.
As there were machines on the site ready to commence the construction of the rock wall PCML sought an urgent interlocutory injunction and argued that Council had not followed the correct legal procedures.
On 11 September 2015 the Court rejected the application for injunction. Justice Craig found that there was a reasonably arguable case that the proposed construction of the rock wall was likely to have a significant effect on the environment. PCML had obtained independent expert evidence supporting its contention. However, in response, Council engaged two experts who supported Council’s contention that the construction of the rock wall is not likely to significantly affect the environment.
On this basis, Justice Craig formed the view that PCML’s case was not strong, and that if PCML succeeded in the final hearing of the proceedings, the rock wall could be removed.
We are grateful to barristers Ian Hemmings SC and Jacinta Reid for their assistance with this matter, and also to Craig Leggat SC and Fenja Berglund.
Hunter Environment Lobby v Office of Environment and Heritage
On behalf of the Hunter Environment Lobby (HEL), EDO NSW has succeeded in an appeal to the NSW Civil and Administrative Tribunal to obtain access to documents relating to the Warkworth Continuation Project in the Upper Hunter Valley.
The continuation project would see an expansion of the Warkworth mine in an area of unique forest containing endangered plant and animal species.
HEL sought access to documents that record communications between the Office of Environment and Heritage (OEH), the Department of Planning & Environment, and Warkworth Mining Ltd about the Biodiversity Offset Strategy for the Warkworth Continuation Project.
In 2012, the Planning Assessment Commission (PAC) approved an application to extend Warkworth open cut coal mine. The project would have extended the life of the mine for 10 more years (until 2031), allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village.
In April 2013 the PAC’s approval of the Warkworth Continuation project was set aside by the Chief Judge of the Land and Environment Court, and that decision was upheld in April 2014 by the NSW Court of Appeal. A key reason for the Court’s refusal of the mine extension was its unacceptable impacts on biodiversity. Read more about those cases.
In 2015, the PAC approved a new application for the extension project. EDO NSW is representing Bulga Milbrodale Progress Association to challenge this decision.
Access to information
HEL argued that any documents relating to discussions between the mining company and the NSW Government are directly relevant to the PAC’s consideration of the new application, and should therefore be made publicly available.
The OEH originally determined to release the documents to HEL in full under access to information laws. However, it later advised EDO NSW that a third party had objected to full disclosure on the basis that the OEH had not made public its decision within the required 15 days. On this basis, the OEH decided to remake its original decision, this time determining to provide only partial access to the documents.
However, on 20 October the NSW Civil and Administrative Tribunal granted HEL access to the documents in full.
What happens next?
In October 2015, the PAC recommended that the project is approvable subject to conditions. This is despite the Land and Environment Court’s 2013 decision that Warkworth’s almost identical previous application for the extension could not be approved because the impacts of the project on the environment and the community would have been too significant.
- PAC determinations and reviews of the Warkworth extension project
- Our other case work on the Warkworth extension project
Warkworth coal mine. Image: John Krey
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Australians for Sustainable Development Inc v Minister for Planning, Lend Lease (Millers Point) Pty Ltd and Barangaroo Delivery Authority
EDO NSW, on behalf of Australians for Sustainable Development Inc, commenced proceedings to challenge two new approvals of the Minister for Planning in relation to development at Barangaroo. The proceedings were commenced in the Land and Environment Court on 26 November 2010 against the NSW Minister for Planning, Lend Lease (Millers Point) Pty Ltd and the Barangaroo Delivery Authority (BDA).
The approvals which were challenged related to the excavation of the building footprint and a car park for almost 900 cars (major project application MP 10_0023) and the early works for the headland park and northern cove, including use of the excavated fill from the car park for the public park (major project application MP 10_0047).
Part of the Barangaroo site and surrounds contain poisonous toxins from gas works that were once conducted in the area. Investigations by the Environment Protection Authority found that there are reasonable grounds to believe that the site was contaminated in such a way as to present a significant risk to human health and environment. Australians for Sustainable Development claimed that carrying out excavation works before cleaning up the source of the contamination posed a serious risk of these toxins flowing into Sydney Harbour.
The approvals were challenged on the following grounds: (1) the early works in relation to the northern headland are impermissible under current zoning; (2) failure to have an appropriate plan of remediation in compliance with the requirements of State Environment Planning Policy No 55 - Remediation of Land (SEPP 55) before carrying out the early works project; (3) failure to comply with SEPP 55 in relation to both projects, in particular, clauses 7(1) and 17(1) of SEPP 55; (4) erroneous or misleading information in the Director General's environmental assessment report for the basement car parking project that conditions of approval ensure appropriate remediation of contaminated land; and, (5) failure to consider principles of ecologically sustainable development, in particular, intergenerational equity, the precautionary principle, and conservation of biological diversity and ecological integrity, and cumulative impacts.
Australians for Sustainable Development sought declarations that the approvals were invalid and of no effect, an order quashing the project approvals, and an injunction restraining Lend Lease and BDA from undertaking the work provided for in the project approvals.
The matter was heard before the Land and Environment Court over 6 days in early February 2011. Two weeks after the decision, the Minister for Planning issued an order under s.75R of the Environmental Planning and Assessment Act 1979 to specify that SEPP 55 did not apply to the project approvals. This was a key ground of the case. Justice Biscoe delivered judgment on 10th March 2011 noting:
" I would have upheld Ground 2, rejected the other grounds and granted relief. However, on 2 March 2011, about two weeks after the completion of the hearing, there was an extraordinary development which spelt the dealth knell of Ground 2. The Minister made an order under s 75R (3A) of the EPA Act amending SEPP 55 by providing that cl 17 and a closely related provision, cl 8 (4), do not apply to these two projects. Accordingly, I must reject Ground 2 and dismiss the proceedings.
...The applicant would have achieved success in the proceedings but for the Minister's amendment to SEPP 55 made after the trial concluded. If the Minister wished to exclude these two developments from the application of cl 17 and cl 8 (4), he could have exercised his power to make the amendment at any time after the commencement of the proceedings, if not before. The amendment changed the law on which the case has been fought. The timing of the amendment, almost two weeks after the conclusion of the hearing, has not been explained. Because the amendment was not made in a timely way, considerable legal costs and resources have been wasted by the applicant in relation to Ground 2. Resources of the Court have also been wasted." [emphasis ours].
The judgment records the Courts significant criticism of the remediation plans for the site and agreement that plans that failed to adopt clear remediation goals were of concern.
As a result the Judge has made an order for the Applicant's costs to be paid by the Respondents and an indemnity costs order against the Minister for Planning. An opinion piece on the use of special legislation has been written by EDO NSW's Executive Director, Jeff Smith.
Barrington-Gloucester-Stroud Preservation Alliance Incorporated v Planning Assessment Commission and AGL Upstream Infrastructure Investments Pty Limited
Update: On 4 February 2016, AGL announced that it will not proceed with the Gloucester Gas Project.
EDO NSW, on behalf of Barrington-Gloucester-Stroud Preservation Alliance Inc. commenced judicial review proceedings against two decisions of the Planning Assessment Commission (PAC) to approve parts of the Gloucester Gas Project.
The Gloucester Gas Project involves 110 coal seam gas wells within a 210km area between Barrington and Great Lakes, transporting the gas from the processing facility to the existing gas supply network via a 95-100 km pipeline traversing several local government areas, and a gas delivery station at Hexham. The Alliance is concerned about the risks of surface and groundwater contamination and the lack of data about groundwater impacts.
The key issue raised by the Alliance in the hearing before the Land and Environment Court was that the PAC failed to properly apply the precautionary principle in approving the development on the basis of only preliminary groundwater investigations, and that certain conditions imposed in relation to groundwater and wastewater left open the possibility of a significantly different development from that for which approval was sought and were therefore uncertain. Justice Pepper dismissed the claim, stating that the conditions imposed in relation to the project were within the permissible limits of Part 3A, were not uncertain with respect to impacts, and that the precautionary principle was adequately considered by the PAC in granting the project approval.
In relation to ecologically sustainable development (ESD) the Court held that, although there is no direct reference to ESD principles contained within s 7 of the Environmental Planning and Assessment Act 1979, the Minister is nevertheless charged with the responsibility of promoting development for the purpose of carrying out the objects of the Act, one of which is ESD. However, the Court concluded that the (decision maker) was obliged to consider ESD principles only “at a high level of generality”, no particular method of analysis or the outcome that should result from this consideration is mandated, and consideration of ESD principles does not require specific reference to the particular principles comprising ESD.
EDO NSW acknowledges and thanks Richard Lancaster SC and Nick Eastman for their advocacy and advice in this matter.
See our more recent case relating to AGL's CSG activities in Gloucester: Watts v Department of Planning and Environment
Barrick Australia Limited v Neville Chappie Williams & Others
EDO NSW acted for Neville "Chappie" Williams in defending an appeal by mining company Barrick Australia Limited from judgment delivered by Justice Biscoe in the Land and Environment Court.
The case concerned an application by Barrick to significantly expand and intensify its mining operations at Lake Cowal, including an increase in the mine's operational life by 11 years. Mr Williams is a Wiradjuri Traditional Owner, custodian and native title claimant in respect of the land and waters on which the Cowal Gold Mine is located. The mine has been the subject of intense and ongoing community concern since its inception.
In the Land and Environment Court, Justice Biscoe held that Barrick's application to 'modify' the existing mine approval in fact proposed a 'radical transformation' of the Cowal Gold Mine. As such, the Court held that the application did not constitute a modification request for the purposes of Part 3A of the Environmental Planning and Assessment Act 1979. The Court also made findings against the validity of decisions made (or to be made) by the Director-General of the Department of Planning and the Minister for Planning which relate to Barrick's application.
This matter was heard by the Court of Appeal on 1 July 2009. Judgment was handed down on 3 September 2009. The Court of Appeal upheld the appeal, overturning Justice Biscoe's orders.
EDO NSW would like to thank Mr Williams' barristers in this matter, Dr Sarah Pritchard and Mr Bret Walker SC.
Bungendore Residents Action Group Inc v Palerang Council & Navaroo Constructions Pty Ltd
Between 2005 and 2007, EDO NSW successfully acted for Bungendore Residents' Group Inc. to challenge Palerang Council's decision to allow alternative 47 or 44 lot subdivisions on an area of land at Bungendore, near Braidwood in the NSW Southern Highlands. The group were concerned the subdivision would be out of character with the surrounding area, being a medium density housing development in a rural location; would impact stressed town drinking water supplies; and that the Council had only approved the subdivision for fear of expensive litigation by the developer in the Land & Environment Court if they refused (these last two concerns were not raised in the case).
On 15 May 2007 Justice Pain handed down judgment that the Council had failed to have regard to certain detailed analyses, and whether each allotment had a practical building precinct, as required under the Local Environmental Plan; and that, as designated development, the development applications should have been subject to an environmental impact statement (which they were not).
On 24 August 2007 the court further decided that it should exercise its discretion to overturn the consents, and then on 30 October 2007 ordered the Respondents to share payment of the Applicant's costs.
EDO NSW would like to thank Mr J Johnson who acted as counsel for Bungendore Residents Group Inc in these matters.
Judgment - Order on costs
Judgment - Development consent overturned
Catherine Hill Bay Progress Association and Dune Care Inc v Minister for Planning & Anor
EDO NSW, on behalf of Catherine Hill Bay Progress Association and Dune Care Inc, commenced judicial review proceedings in the Land and Environment Court. The applicants sought to challenge a major project approval for a staged residential subdivision to create up to 600 residential lots, bulk earthworks, and infrastructure at Catherine Hill Bay.
The applicant raised the potential for the matter to be referred to mediation with the respondents. On 19 October 2011 the parties engaged in a 9 hour mediation session. Consequently, an agreement acceptable to all parties was reached and the matter was discontinued in the Land and Environment Court.
Conservation of North Ocean Shores Inc v Byron Shire Council & Ors
CONOS (Conservation Of North Ocean Shores Inc) represented by EDO NSW was successful in its Land and Environment Court challenge to the development consent for the Splendour in the Grass Music Festival.
The Chief Judge of the Land and Environment Court has found that Byron Shire Council acted outside of its power when it granted consent to Splendour in the Grass to hold a music festival on high conservation value lands north of Byron Bay.
A significant part of the land the subject of the development consent is zoned for habitat protection under the Byron Shire Local Environmental Plan. The Court found that the development is properly characterised as a temporary place of assembly which is a prohibited use in the habitat zone.
The habitat zoning on the land was put in place after a detailed Commission of Inquiry in 1998 that had before it scientific evidence of the significance of the wildlife corridor on the land. The corridor is a regionally significant wildlife corridor linking coastal ecosystems to world heritage hinterland ecosystems. The development would have seen substantial earth works on the land to accommodate the music festival including a 25 metre wide tunnel excavated through the wildlife corridor requiring the removal of native vegetation and wildlife habitats.
EDO NSW was ably led by Mr Tomasetti Senior Counsel and Mr Eastman of Counsel. EDO NSW greatly appreciates their assistance in running important public interest matters.
Media - Northern Star
Cranky Rock Road Action Group Inc v Cowra Shire Council and Ors
The case concerned approval of a 28-lot rural residential subdivision in Cowindra. No Statement of Environmental Effects (SEE) had ever been lodged for the proposal contrary to the requirements of the Environmental Planning and Assessment Regulation 1979 (NSW). There was no dispute that the Act had been breached. The question was, did this make the consent invalid?
At first instance, Bignold J of the Land and Environment court held that failure to lodge an SEE was not a breach which lead to invalidity. CRRAG, represented by EDO NSW, appealed to the Court of Appeal. In the Court of Appeal, the Minister was joined as second appellant, and supported CRRAG in arguing that the consent should be declared invalid on the grounds of failure to submit an SEE.
The Court of Appeal unanimously upheld the decision of the Land and Environment Court, finding that the consent was valid. Tobias JA found that a reading of the Act and the Regulations did not demonstrate a legislative intention that breach of the requirement for an SEE should lead to invalidity of the consent. The principal factors which his Honour relied upon were:
The Court noted that irrespective of whether an SEE was lodged, the Council had an obligation to properly consider the impacts of the proposal under s 79C of the Act.
This decision allows Councils to effectively decide whether or not they will insist on an SEE being submitted. This is of concern, and tends to overlook the fact that development application procedures are designed to keep Councils, as well as developers, accountable. SEEs may vary in quality, but they are the only form of assessment carried out for the vast majority of development proposals in this state. If no SEE is lodged or exhibited, it makes it much more difficult for members of the community to make informed submissions in relation to the proposal.
EDO NSW would like to thank
Judgment - Order on costs
Drake-Brockman v Minister for Planning
EDO NSW commenced proceedings in the Land and Environment Court on behalf of Mathew Drake-Brockman. The proceedings challenged the validity of the approval for re-development of the Carlton United Brewery site for 1600 residential apartments, commercial offices and retail premises.
The case challenged the application of Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), which grants the Minister for Planning broad discretion to approve major projects of State significance. It was argued that the Minister failed to properly consider the principles of Ecological Sustainable Development (ESD) when approving the site. Judgment was handed down on 13 August 2007 in favour of the Minister for Planning. In her decision, Jagot J held that the Director-General had paid more than mere lip service to the principles of ESD, and had satisfactorily considered all necessary matters consistent with the requirements of the EP&A Act.
EDO NSW would like to thank Mr F Douglas and Mr J Lazarus who acted as counsel for the applicant in this matter.
Evans v Maclean Shire Council and Anor
EDO NSW represented Mr and Mrs Evans, objectors to a development application for the expansion of a caravan park and the construction of an on-site sewerage treatment system on Palmers Island on the north coast of NSW.
The basis of the Evans' challenge to the Council's decision was that Maclean Shire Council had no power to grant consent to the development because, pursuant to State Environmental Planning Policy No. 71 - Coastal Protection (SEPP 71), the development was State significant and could only be determined by the Minister.
Justice Bignold found that the DA was properly characterised as State significant development within the meaning of SEPP 71 and that the Minister, not the Council, was the appropriate consent authority. Accordingly, the Court founf that the Council had no power to determine the DA and that the consent was void.
The decision strengthens the operation of SEPP 71 and clarifies the meaning of State significant development.
EDO NSW would like to thank Mr C Leggat and Mr A Maroya for their services as counsel in this matter.
Friends of Currawong v Minister for Planning & Ors
EDO NSW commenced proceedings on behalf of Friends of Currawong in NSW Land and Environment Court to prevent the Minister for Planning from approving part of the Currawong development. These proceedings were brought on the grounds that the Environmental Planning and Assessment Act 1979 prohibits the Minister from approving that part of the project.
Friends of Currawong sought a declaration from the Court that the Minister for Planning is prohibited from approving the part of the project that is within the "County Open Space" zoning under the Pittwater Local Environmental Plan 1993. Friends of Currawong was also seeking orders restraining the Minister from approving that part of the project under Part 3A of the Environmental Planning and Assessment Act 1979, and restraining the Director-General of the Department of Planning from preparing a report for the Minister on that part of the project.
The proceedings were discontinued when the Planning Minister, Kristina Keneally, refused the development application for the subdivision and development of Currawong Beach. The site is now to be listed on the State Heritage Register.
Friends of Hinchinbrook v Minister and Cardwell Properties Pty Ltd
EDO NSW acted for Friends of Hinchinbrook Society Inc challenging the grant of a consent under the World Heritage Properties Conservation Act to allow the dredging of the Hinchinbrook Channel and removal of mangroves for a resort village adjacent to a World Heritage site.
During the hearing, Cardwell properties made an unsuccessful application for security for costs. The application was dismissed because the judge was convinced that legitimate associations concerned with world heritage properties should be able to raise issues before the Federal Court. This recognised the importance of enabling court cases that seek to enforce the law in the public interest.
EDO NSW would like to thank Mr M.H. Tobias QC and Dr J. Griffiths who represented the applicants in this matter.
Friends of Malua Bay v Perkins & Eurobodalla Shire Council
The Land and Environment Court rejected a legal challenge by community group, Friends of Malua Bay, to a residential development on the NSW south coast.
EDO NSW acted for the group in its legal challenge of the Eurobodalla Shire Council’s approval of a 30 lot subdivision on land at Malua Bay, near Bateman’s Bay.
The group argued that the Council failed to consider certain sections of its own Rural Local Environment Plan 1987 (LEP) when it approved the development.. Friends of Malua Bay argued that the law requires Council to be satisfied that the development is consistent with the objectives of the zone in the local environmental plan and that Council must consider the impact of the development on patterns of land use in the Urban Expansion zones.
Justice Craig of the Land and Environment Court, in a judgement handed down on July 14. 2014, found there was no requirement under the 1987 LEP for the council to form its own view as to whether the development, as proposed, is in fact consistent with the objectives of the relevant zone under the LEP.
The Court found that as the council had previously inspected the relevant land for the purpose of rezoning, an inference could be drawn that all councillors were familiar with the land and the pattern of land use both present and intended at that time. This inference, in concert with the material provided by the developer, was enough to satisfy the court that the council had discharged its legal obligation of consideration under the LEP.
The Court reserved its decision on costs and referred to the rule of the Court relating to cases that are brought in the public interest.
EDO NSW is grateful to barrister Fenja Berglund who acted as counsel for the Friends of Malua Bay in this case.
Friends of South West Rocks Inc v Machro Pty Limited and Ors
On 21 December 2004 the Land and Environment Court ruled in favour of the community group, Friends of South West Rocks Inc (FOSWR), represented by EDO NSW, when she found that Kempsey Shire Council had acted outside of its powers in granting consent to three development applications for a total of 82 housing lots on 8.5 hectares of native forest in South West Rocks on the north coast of NSW.
Justice Pain found that in granting consent to the DAs, the Council had breached the provisions of State Environmental Planning Policy No. 71 (SEPP 71) and had no power to grant consent to the DAs because the Minister was the proper consent authority for one of the DAs and the Council could not grant consent to the DAs in the absence of a master plan for the land. Accordingly, the Court found that the consents are void and of no effect.
FOSWR also challenged the grant of concurrence by the Director-General of National Parks and Wildlife, to the DAs lodged by Machro and Eric Norman in respect of impacts of the development proposals on threatened fauna species on the land, in particular, Phascogales and Squirrel Gliders. Justice Pain found that it was not strictly necessary to determine the validity of the concurrence given that she found that the consents were invalid. Her Honour considered the parties' arguments in relation to this ground of review and stated that ‘in the absence of an express power in the NPW Act or the EP&A Act enabling the imposition of a requirement for the payment of money for compensatory habitat, such a requirement is beyond power’. However, Justice Pain concluded that she was not in a position to finally determine FOSWR's arguments in relation to the concurrence.
On 30 November 2004 assent was given to the Threatened Species Legislation Amendment Act 2004. Section 126N, which is contained within Schedule 1 of the amendment Act, provides the Director General with specific statutory powers to grant concurrence conditional on voluntary conservation action. Subsection (2)(d) provides that voluntary conservation action may include the contribution of money for the reservation of land or to secure the protection of land for conservation purposes or to restore threatened species habitat on land.
EDO NSW would like to thank Mr I Hemmings for acting as counsel in this matter.
Friends of Turramurra Inc v Minister for Planning
EDO NSW acted for the Friends of Turramurra Inc who commenced proceedings in the Land and Environment Court to challenge the decision of the Minister for Planning to gazette the Ku-ring-gai Local Environmental Plan (Town Centres) 2010 (“LEP”). The grounds of the challenge were that due process was not followed, the public exhibition process was misleading, the impact of the LEP on bushland and the environment was not properly considered, and the Planning Minister and Planning Panel made too many changes after the LEP was exhibited. Friends of Turramurra also argued that, when preparing the LEP, the Planning Panel failed to consider cl. 10 of State Environmental Planning Policy No 19 - Bushland in Urban Areas (SEPP 19).
Judgement was handed down on 28 July 2011. Although the Court did not find favourably with respect to all of the grounds, Justice Craig found that the LEP had been made contrary to the provisions of the Environmental Planning and Assessment Act 1979 (NSW)and was therefore of no legal force or effect. In particular his Honour agreed that the changes made to the LEP after public exhibition had significant impacts and the LEP should have been re-exhibited.
EDO NSW would like to thank Mr P Larkin and Mr R White for acting as counsel in this matter.
Judgment - Order on costs
Gwandalan Summerland Point Action Group Inc v Minister for Planning
On 2 September 2008 the Minister for Planning approved a Concept Plan for an extensive subdivision development by Rosecorp on development sites at Catherine Hill Bay and Gwandalan. EDO NSW acted for the Gwandalan Summerland Point Action Group, which commenced legal proceedings in the Land and Environment Court challenging the approval.
Prior to lodgement of the Concept Plan application, the Gwandalan and Catherine Hill Bay sites were zoned for environmental protection, and the Department of Planning had ranked these sites as the lowest priority for urban release. The sites contain significant populations of the threatened plant species Tetratheca juncea, and have important scenic and heritage values.
However in 2006 a Memorandum of Understanding (MOU) was signed between Rosecorp and the former Minister for Planning (Frank Sartor) under which the former Minister agreed to facilitate development of these sites for residential purposes. In exchange, Rosecorp was to dedicate a 300 hectare parcel of land at Catherine Hill Bay for a conservation reserve. Following the signing of the MOU (which was also formalised in a Deed), the former Minister agreed to consider a Concept Plan proposal for the sites under Part 3A of the Environmental Planning and Assessment Act 1979. Approval was subsequently granted.
Gwandalan Summerland Point Action Group challenged the Concept Plan approval on two grounds. The first ground alleged that there was a reasonable apprehension of bias in the decision-making process by the former Minister. The second ground alleged that the former Minister had illegally taken into account the terms of the MOU and the Deed he signed with Rosecorp.
The matter was heard on 9, 10 and 11 June 2009 before Justice Lloyd of the Land and Environment Court. Justice Lloyd delivered his judgment on 31 August 2009, finding that both the concept plan for approval of residential development at Catherine Hill Bay, and the Project Approval for the development at Gwandalan were void and of no effect.
EDO NSW acknowledges and thanks Jeremy Kirk and Gerald Ng of Counsel for their appearance and contribution to the case.
Hastings Point Progress Association Inc v Tweed Shire Council and Aeklig P/L
Hastings Point Progress Association Inc (HPPA) appealed to the NSW Court of Appeal a decision of the Land and Environment Court that held that certain provisions of the Tweed LEP were inconsistent with the Seniors Living SEPP (as it was then called) and therefore did not need to be considered by Tweed Shire Council when it granted consent to a seniors living development.
The particular provision of the Tweed LEP mandates that Tweed Shire Council cannot consent to development if it is determined that it will have an unacceptable cumulative impact on the community, locality or catchment or on the area of Tweed as a whole. HPPA argued in the first instance that Tweed Shire Council failed to satisfy itself that the seniors living development would not have an unacceptable cumulative impact on the community, locality or catchment, and it ought to have.
HPPA believes that the development will have an unacceptable cumulative impact on the community, locality or catchment. It is the first development of significant bulk, scale and height and amounts to over-development of the coastal village of south Hastings Point.
In the Court of Appeal, HPPA argued that the trial judge fell into error as the Tweed LEP clause was not inconsistent with the Seniors Living SEPP and it ought to have been considered.
The Court of Appeal delivered a split decision. Basten J found for HPPA in dissent and McColl J and Young J found against HPPA. The appeal was lost and costs were awarded against the community group.
EDO NSW acknowledges and thanks P Greenwood SC and A Pickles of Counsel for their appearance and contribution to the case.
Judgment - Application to amend orders from dismissing appeal to allowing appeal
Judgment - Order on costs
Hastings Point Progress Association Inc v Tweed Shire Council and Planit Consulting P/L and ors
EDO NSW Northern Rivers acted for Hastings Point Progress Association Inc in two Land and Environment Court proceedings which challenged two separate development consents granted by Tweed Shire Council, which allowed 3 storey developments in the coastal hamlet of Hastings Point on the Tweed Coast, contrary to the existing character of the hamlet.
Hastings Point Progress Association Inc claimed that the developments would change the existing character of the coastal hamlet. It argued that in consenting to the developments, Council breached its own local planning controls by failing to take into account the cumulative impacts that the developments will have on the site's community, locality and catchment. It further argued that the decisions of Council to consent to the 3 storey developments, given a clear previous commitment to maintain the existing two storey character of the hamlet, are manifestly unreasonable.
The cases were heard together before Justice Pain in the Land and Environment Court. Her Honour allowed one application and dismissed the other. With regards to the Planit Consulting development, the Court held that in granting consent to a multi-housing development, Council failed to take into account the cumulative impacts of the development as was required by the Tweed Local Environmental Plan and therefore the development consent was invalid.
However, with regards to the Aeklig development, the Court found that Council was not required to take into account the provision in the LEP as State Environmental Planning Policy- Seniors Living allowed the setting aside of local planning controls in the LEP that would otherwise prohibit the development.
EDO NSW acknowledges and thanks Mr A Pickles and Ms Y Cachia of Counsel for their appearance and contribution to the case.
Hill Top Residents Action Group v Minister for Planning and NSW Sport and Recreation
The Land and Environment Court upheld Hill Top Residents Action Group Inc's appeal of the Minister for Planning's approval of a Regional Shooting Complex at Hill Top, in the Southern Highlands, declaring the Minister's approval void.
HTRAG successfully challenged the approval on the basis that the shooting range was prohibited under Part 3A of the Environmental Planning and Assessment Act 1979 and the State Environmental Planning Policy (Major Projects) 2005. The Court found that the 'range danger area', essentially a designated buffer zone to capture stray bullets, was not permissible in the part of the site zoned as an environmental conservation area under the State Environmental Planning Policy (Major Projects) 2005. The Court further found that the range danger area was an essential part of the project, and as a result found the entire approval void, and made an order restraining the Department of Sport from doing anything further on the site pursuant to the project approval.
In addition, the Court accepted HTRAG's submission that the Independent Hearing and Assessment Panel was not properly constituted on the basis that former politician, Ian Armstrong, was not an 'expert'. However, Biscoe J found that this did not lead to invalidity because consideration of the expert report was not mandatory.
EDO NSW wishes to thank Tim Robertson and Jason Lazarus who acted as counsel in these proceedings.
Media - Sydney Morning Herald
Hunter Community Environment Centre Inc v Minister for Planning and Delta Electricity
EDO NSW acted for the Hunter Community Environment Centre ('HCEC') in a Class 4 judicial review challenge against the planning approval for the rehabilitation of Munmorah Power Station. HCEC argued that the approval did not comply with the legal process under Part 3A of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) in two respects:
1. The Director-General of the Department of Planning failed to provide the Minister with a statement of compliance with environmental assessment requirements, and as a result, the Minister did not consider a statement of compliance as required by section 75J(2) of the EP&A Act. This is important, because the statement of compliance tells the Minister whether, in the Department’s view, Delta assessed environmental impacts in compliance with the Environmental Assessment Requirements (EARs).
2. Even if it could be said that there was a statement of compliance within the meaning of the Act, it was erroneous and misleading insofar as it advised the Minister that the Environmental Assessment had met the environmental assessment requirements, when in fact Delta had failed to comply with the requirements particularly in relation to waste management (specifically coal ash), and the identification of measures for its management and disposal.
The case was before Justice Pain of the Land and Environment Court on 9-10 May 2012. The Court was required to consider the legality of the decision under the environmental assessment process which was in force at the time that the decision was made, which was Part 3A.
HCEC was unsuccessful on both grounds.
The Court found that at the time of the Minister’s decision under the EP&A Act, as long as the Minister considered the Director-General’s report, including a statement of compliance, the requirements of the EP&A Act would be satisfied. The Court found that a statement of compliance was not required to be a separate document, and that the whole of the Director-General’s report should be considered in determining whether there was in fact a statement of compliance.
The Court also found that the Director-General’s statement of compliance did not mislead the Minister about compliance with the EAR in relation to coal ash disposal, and that the Director-General’s report was not required to alert the Minister that the measures for disposal of coal ash other than conceptual options. This is because the EAR did not require anything more than these conceptual options, and the Department appeared to have considered that disposal of coal ash would be able to be dealt with in the conditions of approval.
The decision highlights the flexible way in which the Court has interpreted Part 3A of the EP & A Act, and the necessity for continued reform of State Significant Development process in order to ensure the planning system obtains the best environmental outcomes.
On July 3 2012 Delta Electricity announced that Munmorah power station will be closed before 2014.
EDO NSW wishes to express its sincere gratitude to barristers Sarah Pritchard and Melissa Perry QC who acted as counsel for the HCEC.
Illawarra Residents for Responsible Mining Inc v Gujarat NRE Coking Coal Ltd
EDO NSW represented Illawarra Residents for Responsible Mining Inc (IRRM) in Class 4 judicial review proceedings in in the Land and Environment Court of NSW. IRRM sought among other things, an order restraining Gujarat from carrying out mining at an area referred to as ‘Longwall 4' until specific approval or development consent under the Environmental Planning & Assessment Act 1979 (EP&A Act) was granted.
In April 2012, Gujarat commenced mining operations at Longwall 4. Our client is concerned that the operations being undertaken, although within the area covered by consolidated coal licence 745, are not within the area to which the original Project Approval gives approval to carry out mining operations. Furthermore, that in commencing and continuing operations at Longwall 4 without project approval under Part 3A or development consent under Part 4, Gujarat is in breach of the EP&A Act.
Subsequent to the commencement of proceedings, Gujarat made an application to the Court requiring IRRM to provide a bank guarantee for the sum of $75,000 to secure the respondent's costs in the event that proceedings were unsuccessful. On 22 November 2012, the Court handed down judgement in relation to this application. The Court made orders upholding Gujarat's motion for security for costs, but settling the sum at $40,000. The substantive proceedings were stayed pending compliance with this requirement by IRRM, with which it was unable to comply.
On 13 December 2012 the proceedings were discontinued by consent of both parties.
EDO NSW is grateful to barrister Mark Seymour for his assistance in these proceedings.
Munro and Nean v Minister for Lands
Lyall Munro and Wayne Nean brought proceedings against the Minister for Lands for revoking the dedication of Taylor Oval Moree as an oval used for a public purpose under the Crown Lands Act. The applicants are Traditional Owners who are concerned about proposals to develop a culturally significant site to the Gomeroi people and also an important recreational facility in Moree. The challenge was based on the failure of the Minister to take into consideration the Lands assessment that found the highest and best use of Taylor Oval was for recreation and to follow other procedures required by the Crown Lands Act. The Crown Land Act Assessment Report concluded that Taylor Oval is "currently best suited to urban and non-urban recreation and community or public purposes". The ancillary Preferred Uses Report similarly concluded that Taylor Oval be retained as Crown Land reserved and dedicated for public recreation purposes.
The removal of the dedication was to facilitate the rezoning of Taylor Oval for the construction of a Big W and ultimately the lease or sale to Big W for that purpose. EDO NSW took on the case to ensure that proper processes are followed before crown land that is of significance to the local community is leased or sold for private purposes.
The applicants were successful in their action against the Minister for Lands, with the Minister agreeing he had failed to take into consideration the relevant assessments. The Minister for Lands therefore agreed to consent orders that restrain him from further revoking the public purpose dedication of Taylor Oval as gazetted.
Munro and Nean v Minister for Planning and Moree Plains Shire Council
The Minister for Planning approved a rezoning application in Moree which was to amended the zoning of Taylor Oval from recreation to commercial uses to facilitate the building of a Big W department store on the site. Taylor Oval is the main rugby league and cricket ground in Moree and also a significant site for the local Aboriginal community who believe it is situated near a burial ground for the Gomeroi nation. Bodies of Aboriginal persons were excavated on the site in 1903. The site has also been important for reconciliation in the town as an area where both Aboriginal and non-Aboriginal people have mixed over the generations.
EDO NSW acted for two elders of the Moree Aboriginal community who challenged the rezoning. The case focused on whether the Planning Minister and Moree Council followed the correct procedure for rezoning land under the Environmental Planning and Assessment Act 1979.
The Council conceded that they did not follow the correct procedure in exhibiting and approving the draft LEP and agreed to the orders to set aside their decisions. On 4 September 2009, by consent, Justice Lloyd declared that the decision of Moree Plains Shire Council on 8 November 2008 to forward the draft Moree Local Environment Plan 1995 (Amendment No. 17) was void and no effect. He also declared that the decision of the Minister for Planning on 2 January 2009 to approve the amendment to the Moree Local Environment Plan 1995 (Amendment No. 17) is void and of no effect.
Related proceedings are continuing in the Supreme Court against the Minister for Lands' decision to revoke the dedication of Taylor Oval for public purpose recreation.
On behalf of two Aboriginal clients who are elders of the Gomeroi Nation, EDO NSW is seeking a declaration that the decision by the Minister for Lands to notify the revocation of Crown Reserve at Taylor Oval is void, and related injunctions. The revocation of the dedication is an important step in allowing Lands to lease or otherwise deal with the land to enable the Big W development to proceed. The Minister is also contesting the right of the elders to bring the proceedings, as the challenge is based on the common law test of whether they are "a person aggrieved" by the decision. A hearing date was set for 26-27 November at the Supreme Court in Sydney.
On 26 April 2012, Big W announced that it will not be proceeding with the development of a store on Taylor Oval in Moree. The site is significant to the local Aboriginal community. EDO NSW has been representing local Aboriginal elders in Moree, including in a challenge to the rezoning designed to facilitate the building of the Big W store. Moree Murri Taskforce representative Uncle Lyall Munro, one of the elders represented by EDO NSW, has also welcomed Big W's decision not to proceed with the development on Taylor Oval.
More information about the concerns of the Aboriginal community can be found in an article written by EDO NSW's former Principal Solicitor Kirsty Ruddock in Eureka Street.
Michael Ryan v The Minister for Planning, Lismore City Council & others
In 2014, EDO NSW, on behalf of Aboriginal elder Mr Michael Ryan, successfully challenged the validity of changes made to a Local Environmental Plan for the North Lismore Plateau, with the NSW Land and Environment Court, finding that the decision to remove environment protection zones from the plan was invalid.
The last minute amendments removed the only legal protection for important plants, animals and Aboriginal cultural heritage. The Environmental Plan originally protected 28.5 per cent of the 255 hectare North Lismore Plateau site. The rest of the rural land was mostly zoned for housing development.
The environmental protection zones had been included in the original proposal for the Local Environmental Plan amendment and were publicly exhibited by Lismore City Council. They were intended to protect Aboriginal heritage sites and areas of environmental value. These zones included 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 protection zones were removed, apparently due to the Department of Planning’s ongoing review of the use of environmental zoning by councils in northern NSW.
Mr Ryan objected to the removal of the environmental protection zoning due to its potential impact on the cultural heritage and environment of the North Lismore Plateau. The basis of his objection related primarily to the fact that the Environmental Plan that was made was fundamentally different to the one everybody thought was being made and as it was publicly exhibited.
Mr Ryan argued 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.
EDO NSW is grateful to barristers Philip Clay SC and Natasha Hammond who acted as counsel for Mr Ryan in this matter.
Nambucca Valley Conservation Association Inc v Nambucca Shire Council & Anor
The Nambucca Valley Conservation Association Inc (NVCA) commenced proceedings in the Land and Environment Court challenging the decision of Nambucca Shire Council to allow a rural residential development to proceed in core koala habitat. In its 26 years as a community association, this is the first time that the NVCA has decided to initiate legal proceedings.
The NVCA challenged the decision on a number of grounds, including the significant impact on threatened species (including the koala) and an endangered ecological community; failure to consider provisions of the Nambucca Local Environmental Plan; failure to properly exhibit the proposal after it was amended; and improper deferral of environmental considerations by the Council. The case was part heard in August 2009 and the hearing was completed in late October 2009.
On 18 March 2010, Biscoe J upheld the NVCA's challenge and the development consent was declared invalid.
The Court held that the Council had failed to take into account public submissions made in relation to an earlier version of the development. In addition, the Council failed to advertise the final version of the development, which had changed significantly from the first application in 2003 to the final version in 2008.
The Court also found that, in determining the development application, the Council had failed to consider the provisions of its own local environmental plan dealing with the objectives of the relevant land use zones, as well as general considerations applying to the development.
The Court rejected the challenges on the other grounds raised on behalf of the NVCA.
EDO NSW wishes to thank Mark Seymour who appeared as counsel on behalf of the NVCA in these proceedings.
Ned Haughton v Minister for Planning and Delta Electricity
EDO NSW acted for Ned Haughton - a student and environmental activist challenging the Minister for Planning's approvals of two new coal or gas fired power stations - Bayswater B Power Station and the Mount Piper Power Station Extension.
Both proposals were declared to be 'critical infrastructure' projects under the Environmental Planning and Assessment Act 1979 (the EP&A Act), which means that the approvals could not be challenged by third party objectors without the Minister's permission.
Mr Haughton challenged the validity of the approvals on several grounds but, most significantly, on the ground that the Minister failed to consider the impact of the projects (both alone and together) on climate change. Mr Haughton argued that the Minister was required to do so as part of his duty to consider the public interest. Similarly, Mr Haughton sought to establish that the Minister failed to consider the principles of ecologically sustainable development (ESD), particularly the precautionary principle and the principle of intergenerational equity, as he was also required to do as part of his duty to consider the public interest.
Importantly, Mr Haughton also challenged the privative clause in the EP&A Act which sought to prevent judicial review of breaches of the EP&A Act in respect of critical infrastructure projects.
On this issue, Mr Haughton was successful. The Court found that the privative clause in the EP&A Act could not remove the jurisdiction of the Court and that any person can bring proceedings to address alleged breaches of the Act.
However, Mr Haughton was unsuccessful on the remaining grounds. The Court found that although the Minister is required to consider the public interest, that requirement is general in terms of what it encompasses. Therefore, the Minister was not bound to consider any specific element of the public interest such as the principles of ESD or the impacts of the development on climate change. Rather, these are issues that can be balanced with other issues relevant to the public interest, including the need to secure the supply of electricity for the State. A failure to consider any one of these issues will not invalidate the decision. The Minister was not required to refer specifically to the principles of ESD in his decision.
EDO NSW acknowledges and thanks Ms C Adamson SC, Ms S Pritchard and Ms C Burnett of Counsel for their appearance and contribution to the case.
Pindimar Bundabah Community Association Inc v Great Lakes Council & Ors
EDO NSW represented the Pindimar Bundbnah Community Association (PBCA) in proceedings brought in the Land and Environment Court against Great Lakes Council, Port Stephens Council and a developer. PBCA challenged Great Lakes Council's decision to allow New South Wales' first land-based abalone farm to be developed on the edge of Port Stephens estuary on the Mid-North Coast. PBCA, a local community group, has been fighting the controversial development proposal for nearly six years.
The PBCA argued that the proposed abalone farm should be refused on the basis that it would impact on the wild abalone populations and seagrasses and would affect water quality and other aquatic ecological communities. It also argued that the proposal was inconsistent with the Port Stephens Local Environmental Plan and State Environmental Planning Policy No. 62. SEPP 62 applies to pond-based and tank-based aquaculture, including tank culture of abalone. SEPP 62 also lists the types of zones in which the different types of aquaculture are permitted.
In addition to expert evidence, the PBCA relied on the principles of ecologically sustainable development, including the precautionary principle, to support its arguments.
A marine ecologist engaged by EDO NSW stated that construction and maintenance of the pipes to service the farm would cause significant damage to seagrass beds along the pipeline routes and discharge nutrient enriched water into the estuary which could have adversely affected the fragile ecosystem. These impacts directly conflicted with the Department of Primary Industries' Fish Habitat Protection Plan No. 2: Seagrasses which applies to all coastal and estuarine waters of NSW. The Plan aims "to ensure there is no net loss of seagrasses within the coastal and estuarine waters of NSW".
According abalone management and disease experts engaged by EDO NSW, the development could also have affected wild populations of abalone in Port Stephens. Wild abalone populations in the Port Stephens area are already seriously affected by over-fishing, including illegal fishing, and the parasite Perkinsus. The spread of disease within wild populations is a serious concern, likely to be exacerbated by the development.
The case was heard by Chief Justice Preston and Commissioner Adam on 20-22 March 2007. In a preliminary hearing, Chief Justice Preston held that the proposal was not prohibited by the site location requirements of SEPP 62. However, during the hearing of the case, it became clear from the developer's responses to questions posed by Chief Justice Preston that there were a significant number of uncertainties about the way in which the development would occur, including its ability to remove nutrients before discharging water into the estuary. The developer was also unable to produce accurate plans in relation to various aspects of the development. Accordingly, the respondents agreed to the making of consent orders allowing the PBCA's appeal.
EDO NSW is grateful to barrister J E Lazarus for his assistance in this matter.
Project Venture Management v Warringah Council
EDO NSW acted for Duffys Forest Resident's Association in proceedings relating to a subdivision on land that had a very high bush fire hazard and threatened species habitat value. EDO NSW applied to the Land and Environment Court to be heard as intervenors when the Council did not pursue the bush fire hazard issue in merit proceedings with the developer.
EDO NSW acknowledges and thanks Ms L Byrnes of Counsel for her appearance and contribution to the case.
Southern Highlands Coal Action Group v Minister For Planning & Infrastructure & Boral Cement Limited
Approval overturned of coal mine expansion in Sydney’s water catchment
The Land and Environment Court has refused, with the consent of the parties, the State Government’s approval of an expansion of Boral Cement’s coal mine near Berrima in Sydney’s drinking water catchment.
EDO NSW, representing the Southern Highlands Coal Action Group, appeared before the Court and obtained final orders by consent with Boral, for the refusal of the NSW Government’s 2012 approval of the Berrima (Medway) Colliery.
The case had been due to go back to the NSW Land and Environment Court for a retrial of the original challenge to the project’s approval by the community group. However, Boral announced on July 1, 2014, that it would be permanently closing the Berrima (Medway) Colliery.
The original 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 successfully appealed the decision because of concerns about the impacts on groundwater and biodiversity, and the Wingecarribee River in Sydney's drinking water catchment. Read the judgment
The final orders granted by the Court reinstates the community group’s original successful challenge to the mine expansion and bring the case to a close. The parties and the Senior Commissioner agreed that there was no utility in continuing the court case as Boral has indicated the mine will close.
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.
Sweetwater Action Group Inc v Minister for Planning and Huntlee Holdings Pty Ltd
EDO NSW acted on behalf of the Sweetwater Action Group Inc (SWAG) who challenged a decision of the Minister for Planning to rezone a large area of land in the Hunter Valley to allow for development of Huntlee New Town for some 20,000 residents. The area contains one of the last remaining habitats of the Persoonia pauciflora, a critically endangered native shrub, and is also highly contaminated.
The grounds of the challenge focussed on whether the Minister considered the requirements of State Environmental Planning Policy No. 55 (SEPP 55) for remediation of contaminated land, and the enforceability of a Voluntary Planning Agreement (VPA) intended to offset clearing as a result of the development. The challenge also raised the issue of bias in relation to the Lower Hunter Regional Strategy.
On 7 July 2011, Justice Biscoe of the Land and Environment Court (LEC) found in favour of SWAG on two of its three grounds, declaring that the decision of the Minister to recommend the making of an Amending SEPP to give effect to the rezoning, and the Amending SEPP itself, were invalid.
Huntlee and the Minister both filed separate appeals against the decision of Justice Biscoe, challenging his Honour’s findings on SEPP 55 and the VPA. On 8 December 2011, the NSW Court of Appeal overturned the decision made by the LEC, upholding the appeals of Huntlee and the Minister.
The Court of Appeal held that Biscoe J erred in concluding that the Amending SEPP was invalid by reason of non-compliance with clause 6 of SEPP 55. The Court found that the making of a recommendation by a Minister is an exercise of executive (not administrative) power, and that a “valid” Ministerial recommendation is not a necessary precondition to the Governor’s power to make a SEPP.
With respect to the VPA, the Court considered whether the agreement was “enforceable by suitable means” as required by the Environmental Planning and Assessment Act 1979. Their Honours found that the provisions for registration of the VPA, by which the obligations would “run with the land”, were suitable means of enforcement including in respect of commitments to make monetary contributions. Accordingly, the VPA was capable of being taken into account by the Minister in making the recommendation.
EDO NSW is grateful to Ms Christine Adamson SC and Mr James Hutton who appeared as counsel for SWAG in the LEC, and Mr Robert Beech-Jones SC and James Hutton who appeared as counsel in the Court of Appeal, as well as the assistance of Mr Mark Seymour in the LEC.
Sweetwater Action Group Inc v Minister for Planning & Huntlee Holdings Pty Ltd
On 9 February 2009 the Minister for Planning approved a Concept Plan for the new Huntlee Town Centre in the Lower Hunter. The Concept Plan approval was to facilitate an area to house over 20,000 people at North Rothbury, despite the site being ranked last under the Department of Planning's assessment of 91 possible development sites in the Lower Hunter Valley.
EDO NSW acted for the Sweetwater Action Group Incorporated (SWAG) a group of concerned residents who challenged the Concept Plan approval and related rezoning of the site.
In 2006 a Memorandum of Understanding (MOU) and a Deed of Agreement were signed by Hardie Holdings Pty Ltd and the Minister for Planning in relation to the Huntlee site, under which the Minister agreed to facilitate development for residential and commercial purposes. In exchange, Hardie Holdings Pty Ltd was to dedicate 876 hectares of land for a conservation reserve, raising issues about bias in the decision making process and the consideration of irrelevant matters. Also, North Rothbury is the only place where the critically endangered plant, Persoonia pauciflora is found. SWAG was concerned that the Minister had not considered the precautionary principle and biodiversity principle in assessing the development. There were also concerns about the appropriateness of locating a large new population in an area that is not well serviced by public transport or other facilities.
Given the existence of an MOU and Deed between the developer and the Minister for Planning, the case raised similar issues to those raised in the Catherine Hill Bay/Gwandalan case.
On 19 October 2009, the Land and Environment Court declared that the Concept Plan approval and related rezoning of the site were invalid and of no effect, and ordered that these decisions be quashed. The Minister for Planning and Huntlee Holdings Pty Ltd consented to these declarations and orders, in light of the decision by Justice Lloyd in the Catherine Hill Bay / Gwandalan case (see below). The Court also ordered that the Minister for Planning and Huntlee Holdings Pty Ltd pay SWAG's legal costs.
EDO NSW acknowledges and thanks Dr Kristina Stern, Stephen Lloyd and Houda Younan of Counsel for their assistance in the case.
Tomsy's Timber Pty Ltd v Clarence Valley Council & Elland Preservation Organisation Inc
Tomsy's Timbers planned to place a major sawmill development and operation on environmentally significant rural land in the Clarence Valley.
EDO NSW Northern Rivers acted for the Elland Preservation Organisation Inc (EPO). EPO was concerned about the impacts a proposed major sawmill development would have on the natural rural environment. The development was proposed on environmentally constrained land and at the top of a water course that feeds directly into a significant wetland before feeding into the Orara River.
Clarence Valley Council refused the development application lodged by Tomsy's Timbers (the sawmill company) on three separate occasions on a number of legal and environmental grounds. Further, Clarence Valley Council has a sustainability initiative and Industrial Lands Strategy that when applied concludes that this type of major industrial development should only be considered on lands appropriately zoned industrial. Tomsy's Timbers appealed to the Land and Environment Court challenging Council's refusal.
As the proposal was designated development, EPO joined the proceedings and raised a number of environmental matters that Council was not raising in its case. The main arguments put to the Court by EPO were that the proposal would have an unacceptable impact on water quality and cause water pollution and it would adversely affect threatened species. Further the Environmental Impact Statement prepared by the proponent was substantially inadequate and did not comply with the statutory requirements relating to EIS.
The proceedings were initiated by Tomsy's Timbers in April 2008. After the EPO filed its expert evidence in the matter, only 2 weeks before a 5 day hearing was scheduled, Tomsy's Timbers argued in Court to discontinue the proceedings. EPO had no alternative to settle its objection to the discontinuance, however, it did so on the basis that Tomsy's pay its costs incurred to date.
Walker v Minister for Planning
EDO NSW assisted Jill Walker, a local resident, in a successful Land and Environment Court challenge to a Concept Plan approval of a development at Sandon Point.
The proposed development was for up to 285 homes and an aged care facility to be built on flood-prone coastal land.
It was argued that the Minister failed to take into consideration the recommendations and findings of a Commission of Inquiry report, and that the Minister failed to apply the principles of ecologically sustainable development (ESD) when deciding to approve the proposal.
In a detailed judgment, Justice Biscoe reviewed the principles of ESD as well as US and Australian case law on climate change. He found that the Minister for Planning had failed to consider ESD by failing to consider whether the impacts of the proposed development would be compounded by climate change; in particular, by failing to consider whether changed weather patterns would lead to an increased flood risk in connection with the proposed development in circumstances where flooding was identified as a major constraint on development of the site.
The case has important implications for how the Minister must deal with major projects under Part 3A of the Environmental Planning and Assessment Act 1979.
The Minister for Planning successfully appealed to the NSW Supreme Court, Court of Appeal. Ms Walker then sought special leave to appeal to the High Court. The application was heard in March 2009. The High Court declined to grant leave on the basis that while there were valid arguments in her favour, they did not think those arguments would succeed if the appeal was heard by the High Court.
EDO NSW is grateful to barristers Matthew Baird and Greg Young for their assistance in this matter.
Judgment - Order on costs (29 November 2007)
Amended Notice of Appeal (3 April 2008)
Judgment - Appeal (24 September 2008)
Case summary - Appeal (24 September 2008)
Application for special leave to appeal (22 October 2008)
Judgment - Appeal - Order on costs (3 December 2008)
Tugun Cobaki Alliance Inc v Minister for Planning and Roads and Traffic Authority
EDO NSW commenced proceedings in the Land and Environment Court on behalf of a community group, the Tugun Cobaki Alliance Inc. The proceedings challenged the decision by the Minister for Planning to approve the construction of the Tugun Bypass between Currumbin and Tweed Heads as a major project under Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act).
In this case, the Tugun Cobaki Alliance argued that the approval was invalid on a number of grounds, including a failure by the Minister to properly consider certain environmental impact statement (EIS) and species impact statement (SIS) documents, as required under Part 3A.
This case was one of the first challenges to an approval made under Part 3A of the EP&A Act. The appeal dealt with a number of issues relating to the interpretation of Part 3A and the transitional regulations relating to major activities. However, one of the most important issues in the case related to the question of what material the Minister was required to consider before approving the project.
In a judgment delivered on 14 July 2006, Jagot J dismissed the appeal.
Jagot J found that, whilst the Minister was to be 'given' copies of the EIS and SIS, there was no obligation upon him to read those documents personally (which in this instance he did not do). Jagot J referred to the intent of Part 3A being to ensure that infrastructure projects of significance to the State and major projects could be delivered quickly and efficiently.
This judgment reinforces concerns about the wide discretion given to the Minister by Part 3A.
EDO NSW acknowledges and thanks Mr T Robertson SC and Ms L Byrne of Counsel for their appearance and contribution to the case.
Western Sydney Conservation Alliance Incorporated v Penrith City Council and Maryland Development Company Pty Ltd and St Marys Land Limited
These judicial review proceedings were bought by EDO NSW on behalf of Western Sydney Conservation Alliance Inc challenging approval by the Penrith City Council to four residential subdivisions on land containing the critically endangered Cumberland Plain Woodland, on the basis that Council had failed to take into account the Cumberland Plain Recovery Plan of February 2011, as required by the Environmental Planning and Assessment Act 1979 (EPA Act) and the Threatened Species Conservation Act 1995 (TSC Act).
In Western Sydney Conservation Alliance v Penrith City Council  NSWLEC 244 the Court held that Council had failed to consider the Recovery Plan as required under the EPA Act, as the Species Impact Statement and other documents before Council erred in their treatment of the recovery plan. The Court ordered that the operation of the consents be suspended and that the consents be validated upon the Council reconsidering the development applications, having regard to the details of the Recovery Plan. Each party was ordered to pay its own costs. The Court also confirmed a council’s responsibilities to consider and implement recovery plans under particular sections of the EPA Act and the TSC Act.
Following Council’s decision to regrant the development applications for subdivision with a minor alteration, this time taking into account the Cumberland Plain Recovery Plan, the Court considered a motion for orders under s 25C of the Land and Environment Court Act 1979 to validate the new consents. In a subsequent judgment, Western Sydney Conservation Alliance v Penrith City Council  NSWLEC 99 the Court held that the Council was required to revoke the suspended development consents but hadn’t done so, and it adjourned the matter to allow Council to do so.
On 15 May 2012 in Western Sydney Conservation Alliance Incorporated v Penrith City Council  NSWLEC 109, following Council’s revocation of the old consents, the Court made a number of orders, including a declaration that the terms of the Court’s suspension of the old consents had been complied with, that the new consents had been validly regranted and that the old consents had been revoked.
EDO NSW thanks Chris Norton of counsel who appeared on behalf of Western Sydney Conservation Alliance Incorporated.
Judgment - order that the operation be suspended in part
Judgment - Hearing of the notice of motion is adjourned
Wilderness Society v Minister for Planning & Australian Silicon Operations (“Mogo”)
In 2002, EDO NSW acted for The Wilderness Society appealing against a consent for the development of a charcoal smelter at Mogo on the south coast. The appeal was on the basis that the development should not go ahead as the environmental impact assessment for the project did not take into account the impact of taking the wood that was to used to make the charcoal. Before the matter went to hearing, Australian Silicon announced that it did not intend to defend their consent and the matter was finalised. As a result, the charcoal smelter will not go ahead at Mogo.
Yass Environmental Responsibility Network Inc v Yass Council & Anor
EDO NSW, on behalf of Yass Environmental Responsibility Network Inc commenced judicial review proceedings in the Land and Environment Court to challenge development consent to a 175 lot subdivision at Yass. The primary issue in dispute was the impact that the development would have on a listed threatened species, being striped legless lizards (Delma Impar), and the fact that the proponent did not prepare a species impact statement to accompany the application.
Yass Environmental Responsibility Network raised the potential for the matter to be referred to mediation with the respondents. This course of action was subsequently agreed to by all parties and the matter was referred to a Court-appointed mediator. Commissioner Dixon of the Land and Environment Court presided over the mediation.
Through the mediation process the parties were able to come to an acceptable agreement. This included the finalisation of a conservation management plan for striped legless lizards and the imposition of restrictive and public positive covenants on the portion of land used for lizard habitat. By consent, the parties had the Court dismiss the matter on 12 October 2011.