Legal Updates - EDO NSW

Legal Updates

GRL v Minister for Planning: a decision for the right place — at the right time

On 20 August 2018, a 15-year-old girl named Greta Thunberg sat alone outside the Swedish Parliament to protest government inaction on climate change.1  Her solitary school strike would spark a global movement of children striking for their futures.2  On the same day, on the other side of the world, a court convened in Sydney to begin the second week of a hearing into an application for an open-cut coal mine. The case would give rise to a landmark judgment on climate change in Australia.3

Read more

Climate science evidence in the Rocky Hill case

At our March 2019 EDO Insider on the Rocky Hill litigation, Scientific Director Megan Kessler gave an overview of the expert evidence given in the Land and Environment Court during the Rocky Hill hearing in August 2018. This was the first time climate change has been addressed in an Australian court using the concept of a carbon budget. In refusing approval for a new coal mine at Gloucester, the judgment relied on evidence from expert witnesses, Professor Will Steffen and Tim Buckley, who had been engaged by our client Groundswell Gloucester.

In this legal update, Megan outlines the expert evidence that informed Chief Justice Preston’s consideration of climate change in the Rocky Hill case and asks what’s next for the carbon budget.


The Gloucester surrounds. Photo courtesy Groundswell Gloucester.

Read more

After the Royal Commission, what next for Murray-Darling Basin law reform?

While most people are still digesting the recently released 756-page final report of the South Australian Murray Darling Basin Royal Commission, law reform responses are already being drafted to address some of its alarming findings.

Parliamentary responses have included private member’s bills ranging from a broad sector-based approach – for example to ban cotton exports – to a specific amendment to the water buy-back limit under the Commonwealth Water Act 2007, to calls from indigenous groups for legislation to establish a federal Royal Commission into the issue.

This blog identifies the key findings made by Commissioner Bret Walker SC and discusses what could be next for law reform in the Murray Darling Basin.

Read more

Case note: Wollar Progress Association Inc v Wilpinjong Coal Pty Ltd

In August 2017, the Wollar Progress Association (WPA) commenced judicial review proceedings in the Land and Environment Court of New South Wales (LEC) to challenge the decision of the then New South Wales Planning Assessment Commission (PAC) (since replaced by the Independent Planning Commission) to approve the extension of the Wilpinjong open-cut coal mine near Wollar.

The decision1 was the first time the LEC considered whether, and to what extent, cl 14 of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) (Mining SEPP) requires a consent authority to consider an assessment of greenhouse gas emissions, including downstream emissions, when determining a development application for a mining project, including by having regard to any applicable state or national policies, programs or guidelines concerning greenhouse gas emissions.

On 19 June 2018, the LEC dismissed WPA’s application and upheld the PAC’s decision to approve the extension.The judgment demonstrates that broad aspirational policies regarding greenhouse gas emissions reduction targets do not have any meaningful application to the assessment of mining projects in New South Wales.

Read more

What’s the latest in NSW forestry reform?

The draft Coastal Integrated Forestry Operations Approval (draft IFOA) proposes a new rulebook for public forestry in NSW.

By Rachel Walmsley, Director Policy and Law Reform, EDO NSW 

13 September 2018

Read more

Less water, less transparency – the latest amendment to the Commonwealth Water Act 2007

Background: On 25 June 2018, the Water Amendment Bill 2018 (Bill) was passed by the Australian Parliament. The primary purpose of this Bill is to allow an amendment to the Murray Darling Basin Plan that had already been disallowed by the Senate, to be re-tabled and voted on again. The motivation for this unusual Bill was the disallowance of the Northern Basin Amendment[1] by the Australian Senate in February 2018.

Read more

Case note: NCC v Minister for Primary Industries & Anor

In November 2017, the Nature Conservation Council of New South Wales (NCC) commenced judicial review proceedings in the Land and Environment Court of New South Wales (LEC) to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2017 (Code) under the provisions of the Local Land Services Act 2013 (LLS Act).

This would have been the first case to test the new provisions of the LLS Act, however the matter resolved before it went to hearing. On 9 March 2018, the LEC made orders, by consent, declaring that on and from 24 August 2017 the Code had been invalid and of no effect, and the decision to make the Code be quashed.

The Code was re-made in an identical form later that day. It came into effect on 10 March 2018.

Read more

Forest law frenzy in NSW

After years of internal government wrangling, there has been a recent frenzy of activity in NSW forestry law and policy. Six things are happening at once.

Read more

Aboriginal Cultural Heritage reforms: 6 Things You Need to Know

By Nari Sahukar, Rachel Walmsley and William Field-Papuga

27 March 2018

EDO NSW welcomes the release of the Draft Aboriginal Cultural Heritage Bill and the opportunity it holds for Aboriginal governance and heritage management. Our key concerns with the Draft Bill relate to ministerial discretion, effective resourcing, major project exemptions and inequitable appeal rights. We continue to consult closely with Aboriginal people on the Draft Bill and reform proposals.

Update: EDO NSW submission on the draft Bill now available here. Comments close 20 April 2018.


Whale caves near Wollongong. Photo Mark Holden.

Read more

The Northern Basin disallowance

Parliament votes to protect the Murray Darling Basin Plan

By Dr Emma Carmody

16 February 2018

On 14 February 2018, the Australian Parliament voted to disallow a proposed amendment to the Basin Plan to – amongst other things – take 70 GL (or 70 billion litres) away from the environment in the northern Murray-Darling Basin (MDB). The proposed amendment was based on work undertaken by the Murray-Darling Basin Authority (MDBA) as part of the Northern Basin Review (NBR).

Since our national Parliament exercised its right to reject this amendment, the State of New South Wales has intimated in an official media release that it will walk away from the Basin Plan, claiming that the NBR ‘was always part of the Basin Plan package’ and that ‘[t]his move makes the Basin Plan untenable for NSW.’

We have received a number of inquiries from clients about the meaning of these statements, and their possible implications for the ongoing management of scarce water resources in our largest – and most important – river system. The following analysis is designed to separate fact from fiction.


Read more