Legal Updates - EDO NSW

Legal Updates


Good laws are not enough: flawed implementation in the Murray–Darling Basin

In the Australian Environment Review, Rachel Walmsley and Deborah Brennan of EDO NSW examine the significant challenges impinging on implementation of laws regulating water management in the Murray–Darling Basin.

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Implementation of the NSW land clearing laws

Part 3: Compliance and enforcement

It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. While the business of tree clearing has continued apace under self-assessed codes and a new Vegetation SEPP, fundamentally important parts of the scheme are still missing. This EDO NSW series of legal updates looks at how the laws are being implemented and the regulatory gaps that are putting our wildlife and healthy sustainable landscapes at risk.

Our first update looked at clearing in rural areas and outlined the fundamentally important parts of the scheme that are still missing even while tree clearing has continued apace under self-assessed codes. The second update looks at elements of the new scheme that are missing or lack clarity for tree clearing in urban areas and e-zones. This third update looks at compliance and enforcement of new clearing laws.

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Implementation of the NSW land clearing laws

Part 2: Clearing in urban areas and E zones

It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. This EDO NSW series looks at how these laws are being implemented and the regulatory gaps that are putting our wildlife and healthy sustainable landscapes at risk.

Our first update looked at clearing in rural areas and outlined the fundamentally important parts of the scheme that are still missing even while tree clearing has continued apace under self-assessed codes. This second update looks at elements of the new scheme that are missing or lack clarity for tree clearing in urban areas and e-zones. Part 3 looks at compliance and enforcement.

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Implementation of the NSW land clearing laws

Part 1: The missing pieces

It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. While the business of tree clearing has continued apace under self-assessed codes, fundamentally important parts of the scheme are still missing. This EDO NSW series of legal updates looks at how the laws are being implemented and the regulatory gaps that are putting our wildlife and healthy sustainable landscapes at risk. This first update looks at the missing pieces.

Read Part 2 here: Clearing in urban areas and Ezones

Part 3: Compliance and enforcement

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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

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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.

Gloucester_courtesy_of_Groundswell_Gloucester_720.jpg

The Gloucester surrounds. Photo courtesy Groundswell Gloucester.

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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.

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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.

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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

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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.

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