Current Cases - EDO NSW

Current Cases

We represent individuals and community groups in public interest litigation to protect the environment. These are the cases we are currently working on.

Groundswell Gloucester v Gloucester Resources

Groundswell Gloucester, represented by EDO NSW, has been joined to proceedings that will determine the fate of the Rocky Hill Coal project, a greenfield open cut coal mine at Gloucester, in a beautiful valley near Barrington Tops in the upper Hunter.

Our client was permitted by the Court to present expert evidence on climate change and the social impacts of this new mine.  This is the first time an Australian court heard expert evidence about the urgent need to stay within the global carbon budget in the context of a proposed new coal mine. The Court also heard anthropological evidence about the social impact of mining on the community.

The hearing ran over three weeks in August 2018. Judgment was reserved.

In December 2017, the then Planning Assessment Commission (PAC) refused consent to the Rocky Hill Coal Project proposed by Gloucester Resources Limited (GRL). The PAC found that the Project was not in the public interest because of its proximity to the town of Gloucester, significant visual impact and direct contravention of the area’s zoning plans. 

The PAC also refused consent to a Modification of the consent for the nearby Stratford mine (operated by Stratford Coal Pty Limited (SCPL), a related company of Yancoal Australia Limited) that proposed the receipt, processing and railing of coal from the Project.  The PAC found that the Modification would have no critical purpose or utility outside the Project. 

Subsequently, GRL and SCPL appealed the refusal of consent to the Land and Environment Court. Our client, Groundswell Gloucester, sought to be joined to the proceedings.

Groundswell Gloucester is a non-profit community group formed by a group of Gloucester residents concerned with the environmental, social and economic future of the Stroud Gloucester Valley. Groundswell Gloucester strongly opposes the development of the Project.

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On 23 April 2018, the Land and Environment Court ordered that Groundswell Gloucester be joined to the proceedings brought by GRL. Groundswell Gloucester will now be allowed to bring in experts to present evidence on the mine’s detrimental impact on climate change and on the social fabric of Gloucester. In relation to the climate change ground, on joining Groundswell Gloucester, the Court noted that:

“GRL submits that the raising of the climate issue as proposed in a domestic Court if the Intervener were joined would not serve the purpose of improving this particular planning decision; and, instead, would be a “side show and a distraction”. I do not agree.”

Matt Floro, solicitor for EDO NSW, has carriage of this matter for Groundswell Gloucester and our Principal Solicitor is the solicitor on record.

We are grateful to barrister Robert White for his assistance in this matter.

 


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ACA v NSW MInister for Planning & Wyong Coal & Kores Australia

EDO NSW, on behalf of the Australian Coal Alliance (ACA), filed a case against the NSW Minister for Planning, Anthony Roberts, on the basis that legal errors were made in the Planning Assessment Committee’s (PAC) approval of the Wallarah 2 longwall coal mine west of Wyong on the Central Coast in January 2018. 

Update: This case was heard in the Land and Environment Court over three days from Monday 12 November 2018.

Wyong Coal Pty Ltd, which trades as Wyong Areas Joint Coal Venture, and Kores Australia Pty Limited, are co respondents. KORES Australia Pty Ltd, a fully-owned subsidiary of Korea Resource Corporation, is the majority shareholder of Wyong Coal Pty Ltd.

The case is being fought on four main grounds: climate change, flooding impacts, compensatory water and risks to water supply for farmers in the region.

Wallarah 2 involves construction and operation of an underground coal mine over the next 28 years, until 2046. It would extract five million tonnes of thermal coal a year. The total greenhouse gas emissions over the life of the mine will be 264+ million tonnes of CO2.

In approving the Project, the PAC chose not to take into account emissions which come from the burning of coal mined at Wallarah 2. Our client argues that the law wasn’t followed with respect to climate change impacts. The key ground with respect to greenhouse gas emissions is that the PAC failed to consider an assessment of downstream emissions from the project. Under the EP&A Act, the PAC was required to consider the public interest. ACA argues that in 2018, considering the public interest for projects such as coal mines mandates the consideration of principles of ecologically sustainable development, particularly intergenerational equity and the precautionary principle.

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In a longwall coal mine. Creative Commons.

In addition, our client argues that the PAC unlawfully failed to consider the risks of the flood impacts and the potential loss of water occasioned by the mining project.  

The Project, located within the Central Coast water catchment, would have significant impacts on the Central Coast water supply and residents in the surrounding areas. 

It would permanently alter the landscape, causing flooding events that will only increase over time as the impacts of climate change are realised. The PAC approval proposes dealing with these devastating flooding events by first requiring the mine to try mitigation measures like putting people’s houses on stilts, relocating homes or building levees. If those measures don’t work, then the mine would be required to pay the owners of the properties for the harm. Our client says this simply is not a lawful way to mitigate harm from flooding. There is no evidence that the mitigation measures will work or that compensation is an effective way to remedy harm caused by flooding.

The mine is also likely to impact upon the Central Coast water supply and access to water for farmers in the surrounding region.  The mine proposes to construct a pipeline to deliver compensatory water to the Central Coast Council and provide emergency and long-term compensatory water supplies to farmers if they lose access to water on their properties. If compensatory water cannot be provided, the mine can agree to buy those farmers out. The approval does not cover how the pipeline and the compensatory water is to be provided. ACA argues that the mitigation measures proposed by the PAC in the conditions of approval are not lawful, primarily because they go beyond the power of the PAC to deal with environmental impacts of the Project.

Our Acting Principal Solicitor, Brendan Dobbie, is the solicitor on record.

We are grateful to Craig Leggat SC and Josie Walker of Counsel for their assistance in representing ACA in this case.

 


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Inland Rivers Network v Harris & Another

EDO NSW, on behalf of its client the Inland Rivers Network, has commenced civil enforcement proceedings in the NSW Land and Environment Court in relation to allegations of unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.

The two water access licences at the centre of these allegations allow the licence holder to pump water from the Barwon-Darling River in accordance with specified licence conditions, as well as rules set out in the relevant ‘water sharing plan’. The conditions and rules specify – amongst other things – how much water can be legally pumped in a water accounting year (which is the same as the financial year) and at what times pumping is permissible (which depends on the volume of water flowing in the river at any given time). 

Our client alleges that the holder of these licences pumped water in contravention of some of these conditions and rules, thereby breaching relevant provisions of the Water Management Act 2000 (NSW) (WM Act). The allegations are based on licence data obtained by EDO NSW earlier in 2017 from Water NSW, a state-owned corporation charged with the responsibility of regulating compliance with the WM Act. 

Analysis of this data, along with the relevant rules and publicly available information on river heights, indicates that the licence holder may have pumped significantly more water than was permissible on one licence during the 2014-15 water year, and taken a significant amount of water under another licence during a period of low flow when pumping was not permitted in the 2015-16 water year. Despite being made aware of these allegations by EDO NSW on two occasions, in April and August 2017, and having had access to the data since at least July 2016, Water NSW has not provided any indication that it intends to take compliance action against the licence holder.

Both allegations concern the potentially unlawful pumping of significant volumes of water, which may have had serious impacts on environmental flows in the river and downstream water users. However, our client is particularly concerned by the alleged over-extraction in the 2014/15 water year, as this period was so dry that the Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell to 4 percent of their total storage capacity. This in turn threatened Broken Hill’s water security and led the NSW Government to impose an embargo on water extractions during part of that year in order to improve flows down the Barwon-Darling into the Lakes and Lower Darling River. 

In these proceedings, the Inland Rivers Network is seeking, amongst other things, an injunction preventing the licence holder from continuing to breach the relevant licence conditions. In addition, and in order to make good any depletion of environmental flows caused by the alleged unlawful pumping, our client is also asking the Court to require the licence holder to return to the river system an equivalent volume of water to that alleged to have been unlawfully taken, or to restrain the licence holder from pumping such a volume from the river system, during the next period of low flows in the river system. Failure to comply with a court order constitutes contempt of court, which is a criminal offence. 

EDO NSW is grateful to barristers Tom Howard SC and Natasha Hammond for their assistance in this matter.

Brendan Dobbie, Senior Solicitor at EDO NSW, has carriage of this matter for IRN.

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HSI Australia v Great Barrier Reef Marine Park Authority

Humane Society International Australia (HSI), represented by EDO NSW, is seeking independent review of the Great Barrier Reef Marine Park Authority’s (GBRMPA) decision to approve a lethal shark control program in the Great Barrier Reef Marine Park.

HSI has lodged an appeal in the Administrative Appeals Tribunal (AAT) which will require a full reconsideration of the approval of the shark control program. The 10 year lethal control program targets 26 shark species in the Marine Park, including threatened and protected species. The appeal is based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park.

Update: The case will be heard in the Administrative Appeals Tribunal from Wednesday, 30 January 2019.

The Great Barrier Reef is a World Heritage Area globally recognised as an outstanding example of biological evolution, containing unique, rare and superlative natural features and areas of exceptional natural beauty. The World Heritage listing notes that the Great Barrier Reef is one of the richest and most complex natural ecosystems on earth, and one of the most significant for biodiversity conservation. Australia has a legal responsibility to ensure its protection.

As apex predators, sharks play a vital role in maintaining the health of the Great Barrier Reef. HSI is concerned about the ongoing impacts caused by the use of lethal drumlines which are known to impact not only on shark species but also dolphins, turtles and rays. HSI is calling for non-lethal alternatives for bather protection.

In these proceedings, the AAT will be presented with expert evidence based on the best available science relating to shark control programs and will determine whether the program as approved should go ahead.

Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for HSI Australia.

We are grateful to barristers Philip Clay SC, Saul Holt SC and Natasha Hammond for their assistance in this matter.

Link to this case summary.

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Australian Conservation Foundation application to WaterNSW

Our client, the Australian Conservation Foundation (ACF), sought access to information held by WaterNSW (the NSW Government regulator) about Water Access Licences held under the Water Management Act on the Barwon-Darling River by major irrigators.

Following a case lodged by ACF last year, WaterNSW decided to release the information. However, the irrigators have commenced their own case objecting to that decision.

ACF argues the public has a right to know about the information and a right to know how the NSW Government is regulating and enforcing the use of one of our most vital natural resources. They argue that transparency is key to public confidence in the regulatory system governing water access and use in the Barwon-Darling Basin.

On behalf of ACF, we are asking the NSW Civil and Administrative Tribunal (Tribunal) to decide that the release of this information is in the public interest.

This case is listed for hearing on 30 November 2018.

Background

In December 2016, we applied, on behalf of ACF, for information about the Water Access Licences under NSW freedom of information laws.

WaterNSW released some licensing information in February 2017, but much of what our client requested was withheld on the basis that it would prejudice the business affairs of the licence holders.

In May 2017, we applied for further information, on behalf of ACF, in respect of other licences held by the irrigators. WaterNSW responded by refusing to release the majority of the information sought, again, on the basis it would prejudice the business affairs of the licence holders.The information sought is crucial to understanding how the Water Management Act is administered by WaterNSW. Accordingly, the release of the information is likely to inform an issue of significant public importance.

For this reason, on behalf of ACF, we appealed to the Tribunal on WaterNSW’s decisions to withhold the information in July 2017. Midway through those proceedings, WaterNSW reversed its decision and decided to release the information. However, the irrigators objected to the release of the licensing data and sought a further review by WaterNSW. Ultimately, WaterNSW upheld its decision to release the information and, in late January 2018, the irrigators commenced their own proceedings in the Tribunal objecting to the release of the information.

ACF is not a party to those proceedings but, as the original access applicant, has a right to appear and be heard in the proceedings. ACF will argue that there is an overriding public interest in the disclosure of the information it seeks.

Access to this information is vital for the public to have confidence that important environmental laws protecting fair and equitable access to Australia’s water resources are being properly administered. This was most recently highlighted by the recommendations of the NSW Ombudsman and Ken Matthew’s independent investigations into water management and compliance in NSW.

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Lock the Gate v Dept of Planning & Environment / Dept of Premier & Cabinet

Our client Lock the Gate is seeking access to information held by the NSW Government about secretive deals relating to the “buy-back” of the coal exploration licence for Shenhua Watermark Coal Pty Limited’s (Shenhua) controversial Shenhua Watermark Coal Mine in the Liverpool Plains in north central NSW, one of the nation’s most productive agricultural regions.

Lock the Gate argues that the public has a right to know about deals made behind closed doors in relation to the exploration and development of the proposed Watermark coal mine. Lock the Gate argues that accountability and transparency in this case are essential given the significant predicted impacts of the Watermark mine on the Liverpool Plains, the nation’s agricultural industry, local communities and the environment.

On behalf of Lock the Gate, we are asking the NSW Civil and Administrative Tribunal to decide that the release of this information is in the public interest.

Update: This matter was heard on 9 May 2018.

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Farmland on the Liverpool Plains. Photo: Lock the Gate Alliance.

Background

In July and September 2017, respectively, Lock the Gate made applications to the NSW Department of Planning and Environment and the NSW Department of Premier and Cabinet for information about Shenhua’s application to renew its exploration licence for the Watermark mine. That information encompasses secretive dealings between Shenhua and the NSW Government that resulted in the buy-back of around 51% of the exploration licence, which covered the highly fertile “black soils” of the Liverpool Plains, at the cost of $262 million to the public.

Whilst the NSW Government claims that the buy-back was necessary to protect the black soils from mining, and thereby the agricultural industry of the Liverpool Plains, Lock the Gate contends that the buy-back will do nothing to lessen the expected impacts of the mine. Furthermore, Lock the Gate argues that the buy-back was completely unnecessary. The NSW Government could have used its powers under the Mining Act to reduce the size of the exploration licence by 50% upon its renewal without the payment of any compensation to Shenhua.The NSW Government could also have cancelled the exploration licence outright given that Shenhua had allegedly failed to comply with a condition of the licence that required substantial development of the Watermark mine to have commenced by October 2016, eight years after the initial grant of the licence in 2008.

The information sought by Lock the Gate includes Shenhua’s submissions on the licence renewal application, its request for the abovementioned licence condition to be suspended, Ministerial briefings and draft deeds of agreement about coal exploration and mining titles. The NSW Government has withheld this information on the basis that, amongst other things, it contains Cabinet information, was provided in confidence, or that its release may be prejudicial to Shenhua’s business interests – and therefore that there is an overriding public interest against its disclosure.

On the contrary, Lock the Gate argues that the overwhelming public interest in the release of the information is clear.

Access to this information will increase the accountability and transparency of the NSW Government in relation to the exploration and development of coal in the Liverpool Plains. This is particularly important in these circumstances where the Government has done deals with a private, foreign-owned, coal mining company behind closed doors and these have resulted in the expenditure of vast amounts of public funds without clear justification.

Access to this information is also vital for the public to have confidence in the decision-making processes of the NSW Government in relation to dealings about coal mining and exploration projects. This is essential where these dealings involve projects that are likely to have significant economic, social and environmental impacts and in which a number of stakeholders have expressed competing views. The more transparency around those deliberative processes, the more likely it is that they will be of high quality and will serve the public interest.

Brendan Dobbie, senior solicitor for EDO NSW, has carriage of this matter for Lock the Gate and our Principal Solicitor, Elaine Johnson, is the solicitor on record.

We are grateful to barrister Scott Nash for his assistance in this matter.

ECoCeQ v Environment Minister and Anor

EDO NSW filed proceedings in October 2018 on behalf of our client, the Environment Council of Central Queensland (ECoCeQ), challenging a decision of the Federal Minister for the Environment in regards to a proposal to clear 2,100 ha of native vegetation on the Cape York Peninsula.

27 November 2018: The Federal Court has upheld this challenge. The Federal Minister for the Environment has conceded that the decision was not made lawfully. Read our media release: Media concedes unlawful decision on land clearing in Reef catchment

More on the case: This clearing is likely to have significant impacts on matters of national environmental significance, including the Great Barrier Reef Marine Park and listed threatened species and ecological communities.

ECoCeQ is challenging the Minister’s decision to assess the environmental impacts of the proposed clearing using the least rigorous assessment method available: ‘assessment on referral information’.

The Minister is permitted to determine that a proposal should be assessed using ‘referral information’ only if satisfied that the proposal meets a number of stringent criteria outlined in the federal environmental legislation, including that the relevant impacts of the proposal are expected to be short term, easily reversible or small scale, and that the degree of public concern about the proposal is, or is expected to be, moderately low.

We are arguing, on behalf of ECoCeQ, that:

  • the decision to apply the least rigorous assessment option to the proposal was unlawful because the Minister was not satisfied, as required by law, that the proposal met the criteria outlined in the legislation.
  • it was unreasonable for the Minister to find that the proposal was of ‘moderately low’ public concern in circumstances where, among other things, the Minister received more than 6,000 public submissions objecting to the proposal at the preliminary referral stage.

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The Great Barrier Reef and Cape York - Envisat image.

Emily Long, Solicitor at EDO NSW, has carriage of this matter for ECoCeQ. Brendan Dobbie, Acting Principal Solicitor, is the solicitor on record.

We are grateful to barristers Stephen Lloyd SC and Ashley Stafford for their assistance in representing ECoCeQ in this matter.

Link to this case summary.

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