Positive Change for Marine Life v Byron Bay Shire Council and Byron Preservation Association Inc

September 2015

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.

 

Judgment