EDO NSW has assisted community groups in their efforts to protect rivers and catchments from unsustainable uses of water resources, insufficient allocations for environmental flows, and unsustainable developments.
Quipolly Water Action Group Inc v NSW Department of Industry
Our client, community group Quipolly Water Action Group (QWAG) successfully gained access to documents relating to the regulation of groundwater at the Werris Creek coal mine. The mine is located in north-west New South Wales near the Liverpool Plains and is owned by Whitehaven Coal.
The community group first requested access to the documents from the NSW Department of Industry, but was refused because the Department determined that the documents were ‘commercial’.
On behalf of our client, we requested the NSW Information Commissioner to review the Department’s refusal to release the documents. The Commissioner agreed that the Department’s decision was 'not justified'. However, the Commissioner’s decision was not binding, and the Department continued to refuse to release the documents to our client.
As a result, in early September 2016 we commenced proceedings in the NSW Civil and Administrative Tribunal (Tribunal), whose decision on whether the documents should be released would be binding.
On behalf of our client we argued that the documents are not commercial, in the legal sense, and that it is in the public interest to release these documents: groundwater is a critical shared resource, and it is important that the community knows what impact mines are having on groundwater and how the government is regulating such impacts.
On 27 September 2016 the Department made a decision to release the documents to our client. However, this new decision had the effect of renewing Whitehaven Coal’s third party appeal rights, meaning that access by at least 40 working days, or longer if Whitehaven decided to join the proceedings.
In mid-October, we appeared before the Tribunal to argue why the documents should be released to our client before the expiry of the 40 working day period.
On 8 November 2016, the Tribunal published its preliminary decision, which agreed with our argument that the Department’s 27 September decision to conditionally release the documents was invalid because it was made after the proceedings were filed. The Tribunal also agreed to allow Whitehaven Coal seven days to join the proceedings so as not to prejudice any appeal rights. The Tribunal ordered that if Whitehaven failed to join the proceedings, the Department was to provide the documents to our client.
On 24 November 2016, we again appeared on behalf of QWAG in the Tribunal. As Whitehaven had not joined the proceedings, the Tribunal made an order for the documents to be released to our client within 24 hours.
With this decision, the community will gain unprecedented insight into how the the NSW Department of Industry is regulating the impacts of this and other coal mines in NSW. It is an important win for the public interest.
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Community granted access to information on groundwater regulation at Werris Creek coal mine
media release, 24 November 2016.
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A dried up section of Quipolly Creek near the Werris Creek coal mine
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
Darling River Action Group Inc v Director General Department of Natural Resources
On 14 September 2007, the Director General of the Department of Natural Resources (QLD) revoked the decision to auction 8000ML of unallocated water from the Warrego catchment.
As a result, the Darling River Action Group Inc, represented by EDO NSW, has withdrawn its case in the Supreme Court of Queensland challenging the auction.
The Broken Hill based group were challenging the auction on the basis that they would be adversely affected by the auction and that they had not had an opportunity to be heard regarding the decision. The auctioning of 8000ML of water - the equivalent of 4000 Olympic swimming pools - would have had significant adverse impacts for the already severely stressed Darling River, which has dried up along much of its length due to overextraction upstream.
Nature Conservation Council of NSW Inc v the Minister for Sustainable Natural Resources
In 2003, EDO NSW represented the Nature Conservation Council (NCC) in a case challenging the validity of the water-sharing plan for the Gwydir Regulated River Water Source because it failed to address environmental necessities. NCC argued that the plan had failed to specify performance indicators or establish environmental water rules in respect to both environmental health water and supplementary environmental water. However, in February 2004, the Land and Environment Court dismissed the appeal, finding the plan was validly made.
EDO NSW was granted special leave to appeal to the High Court in late 2005. Unfortunately, the NSW Government subsequently passed legislation to retrospectively validate all water sharing plans made under the Water Management Act 2000, including plans that may have been invalidly made. As a result, the Nature Conservation Council (NCC) was forced to abandon its High Court challenge to the Gwydir Water Sharing Plan.
Snowy River Alliance Inc v Water Administration Ministerial Corporation and Snowy Hydro Limited
EDO NSW acted for the Snowy River Alliance Inc ('SRA') in their challenge to the Water Administration Ministerial Corporation's ('WAMC') review of the Snowy Hydro water licence and a subsequent variation to the licence.
The Snowy Hydro Corporatisation Act 1997 (NSW) ('Act') requires the WAMC to conduct a review of the obligations under the licence relating to the ‘Snowy River Increased Flows’ and to exhibit a copy of any state of the environment reports prepared by the Snowy Scientific Committee (‘SSC’).
On 23 July 2010, EDO NSW commenced proceedings in the Supreme Court of NSW on behalf of the SRA challenging the validity of the review. SRA argued that the WAMC's review failed to meet the description of ‘review’ as required by the Act and failed to exhibit any SSC reports prior to the review. If the review was found to be invalid, the variation to the licence may also have been invalid.
The matter was heard before the Supreme Court on 14 March 2011. On 30 June 2011, Justice Hislop delivered judgment dismissing SRA’s legal challenge. In recognition of the public interest arguments of the Snowy River Alliance, the Court made no order as to costs.
EDO NSW is grateful to Stephen Free of counsel for his assistance with the case.
Judgment - Order on costs
Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors
Represented by EDO NSW, Bruce Wilson on behalf of the Gurrungar Environment Group appealed against a consent for a cotton farm at “Beemery” near Bourke on the grounds that it was not ecologically sustainable.
The development included a large water storage facility for irrigation and, due to the risk of salinity, had a limited lifespan. The matter finalised with the parties agreeing on stringent consent orders including conditions for groundwater monitoring, controls on clearing and the ban of the use of herbicides in the irrigation area.
These conditions set the standard against which future cotton developments will be measured.