Native Plants & Animals
EDO NSW has assisted community groups and individuals throughout NSW in their efforts to protect native plants and animals from inappropriate development, unlawful activities, and unsustainable clearing practices.
Friends of Tumblebee v ATB Morton & Cessnock City Council
EDO NSW clients Friends of Tumblebee have successfully challenged Cessnock City Council’s approval for the construction of a steel fabrication and workshop facility in an area of forest that is home to the Regent Honeyeater, a bird that is listed as ‘critically endangered’ under both NSW and Australian environmental laws.
The Land and Environment Court’s decision could save habitat critical for the survival of the Regent Honeyeater, a bird species on the brink of extinction.
Friends of Tumblebee argued that a species impact statement should have been undertaken before the development was approved as the development is likely to significantly affect the habitat and survival of the critically endangered bird. The case was reinforced by independent scientific research showing that the Hunter Economic Zone, where the development would have been located, contains one of the few remaining viable breeding sites for this extremely rare bird. The area supports about 10 per cent of the national (and therefore global) population of between 350 to 400 birds, according to the latest expert assessment.
A scientific paper published in the journal Australian Field Ornithology, presented as evidence to the court, reveals that the Hunter Economic Zone where the development is proposed contains one of the most important breeding habitats left for this extremely rare bird.
Dr Stephen Debus and Mr. Mick Roderick assisted the Court with expert evidence.
EDO NSW is grateful to barristers Jason Lazarus and Josie Walker who acted as counsel for Friends of Tumblebee in this matter.
Regent Honeyeater. Image: Dean Ingwersen/Birdlife Australia
- Page for this case
- Court grants reprieve to a critically endangered bird, EDO NSW media release 11 March 2016
- Community group in court to save critically endangered bird, EDO NSW media release 29 October 2014
- Hunter group takes council to court to protect endangered species, EDO NSW blog 31 January 2014
Residents Against Intermodal Development Moorebank Inc v NSW Minister for Planning and Qube Holdings Ltd
6 March 2018: Judgment was delivered by the Land and Environment Court.
Community group Residents Against Intermodal Development Moorebank (RAID), represented by EDO NSW, has appealed to the Land and Environment Court to protect a critically endangered ancient plant species thought to be extinct for almost 200 years.
RAID is asking the Land and Environment Court to undertake a full reconsideration of the approval of the large industrial shipping container facility at Moorebank, in Western Sydney, because the critically endangered Hibbertia fumana, thought to be extinct but recently rediscovered in the area of the development, wasn’t considered when the development was approved in December last year.
The Hibbertia fumana was rediscovered in the vicinity of the proposed terminal only 2 months before the Moorebank development was approved. The facility is a major development expected to process 1.5 million shipping containers every year.
In December 2016, the Planning Assessment Commission (PAC) approved the development, but was not told about the existence in the area of the rediscovered species, or the impacts that the development may have on the species.
Just four days after the PAC approved the development, the NSW Scientific Committee publicly listed the rediscovered species as critically endangered.
Hibbertia fumana, a delicate shrub with yellow flowers, was last documented in 1823 and was thought to be extinct. The Moorebank area where the development is located is the only known population of Hibbertia fumana.
Biodiversity is essential for a prosperous economy and healthy environment, but as a nation we are not doing enough to protect it. The State of the Environment Report tabled in Parliament by the Commonwealth Government in March 2017 paints a worrying picture of the rapid decline of threatened species in Australia: “The outlook for Australian biodiversity is generally poor, given the current overall poor status, deteriorating trends and increasing pressures.”
Threatened species are being pushed to extinction development by development, a phenomenon often referred to as ‘death by a thousand cuts’. It is critical to determine whether or not this development will bring about one more extinction.
Our client is asking the Land and Environment Court to undertake a full reconsideration of the SIMTA development approval, including the potential impact on the Hibbertia fumana, and the community more broadly. This is a ‘merits appeal’ based on the public’s interest in protecting critically endangered species and protecting biodiversity.
During the hearing, Qube challenged the community’s right to be heard before the court, and sought to have the whole case dismissed on the basis that RAID was not incorporated at the time they made their submission to the Planning Assessment Commission. EDO NSW successfully defended that challenge in both the LEC and the Court of Appeal, allowing the case to continue all the way to hearing. This was a significant win for community groups across NSW who seek to be heard in merits appeals against major developments.
Belinda Rayment, Solicitor at EDO NSW, has carriage of this matter for RAID.
We are grateful to barristers Andrew Pickles SC and Dr James Smith for their assistance in this matter.
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NCC vs Minister for Primary Industries and Another
The Nature Conservation Council of NSW, represented by EDO NSW, commenced proceedings in November 2017 in the Land and Environment Court to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2017 (the Code) under the Local Land Services Act 2013 (NSW).
The decision to make the Code was made against the backdrop of the NSW Government’s 2016 biodiversity and land clearing reforms, which saw the introduction of, amongst other things, the Biodiversity Conservation Act 2016 (NSW) and the Local Land Services Amendment Act 2016 (NSW). The Local Land Services Amendment Act amended the Local Land Services Act 2013 and inserted a provision which allowed the Minister for Primary Industries to make the Code. The Code purportedly came into force on 25 August 2017, and allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment. The Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural land can and cannot occur, however the release of these maps is significantly delayed and landholders are required to self-assess whether the Code applies to their land.
Koala and joey. Photo from Wikimedia (Benjamint444).
The Nature Conservation Council of NSW is arguing that the Code is invalid because the Minister for Primary Industries did not obtain the agreement of the Minister for the Environment before the Code was made, and that both the Minister for Primary Industries and the Minister for the Environment failed to have regard to certain principles of ecologically sustainable development, including the precautionary principle, inter-generational equity and the conservation of biological diversity and ecological integrity, when making, or giving concurrence to, the Code.
Section 60T of the Local Land Services Act, under which the Code is made, makes it a requirement for the Minister for Primary Industries to obtain the concurrence of the Minister for the Environment before making the Code, and places a positive obligation upon both Ministers to have regard to the principles of ecologically sustainable development.
Proper consideration of the principles of ecologically sustainable development is particularly important in this case for the following reasons:
- clearing of native vegetation is listed by the NSW Scientific Committee as a Key Threatening Process under the Biodiversity Conservation Act 2016, yet the Code allows self-assessed broadscale clearing across NSW in the absence of any assessment of the likely cumulative impact of clearing under the Code on biodiversity or land or water resources;
- there is a lack of full scientific certainty about the effect of the Code in the absence of native vegetation regulatory maps;
- the Code switches off requirements to carry out environmental assessments for clearing; and
- the Code provides a defence to offences under the Biodiversity Conservation Act 2016 in relation to the picking of threatened species, threatened ecological communities or protected plants, damage to a declared area of outstanding biodiversity value or damage to the habitat of a threatened species or threatened ecological community, if the person charged can establish that the clearing was authorised by the Code.
This is the first case to test the new provision of the Local Land Services Act which allowed for the making of the Code.
We are grateful to barristers Jeremy Kirk SC and David Hume for their assistance in this matter.
Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for NCC NSW, and our Principal Solicitor, Elaine Johnson, is the solicitor on record.
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- Case note from Australian Environment Review
- EDO NSW input into the Biodiversity Legislation Review 2016-17
- EDO NSW factsheet: Conservation on private land
- Link to this case summary.
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Humane Society International v Department of the Environment and Energy
Our client, Humane Society International (HSI), sought access to documents held by the Australian Department of the Environment and Energy on the adequacy of NSW’s biodiversity offsets policy for major projects ('the Policy').
Update May 2018: After a three year legal battle, more than 60 documents were eventually released.
HSI argued that the public has a right to know why the Australian Government believes, despite evidence to the contrary, that the NSW Policy meets national standards. On behalf of HSI, we asked the Administrative Appeals Tribunal to find that it is in the public interest to release the documents under Freedom of Information laws.
Biodiversity offsets have become standard practice in the approval and assessment of major developments in Australia, even though there is little evidence that offset schemes achieve their intended purpose of protecting threatened species from extinction.
Biodiversity offsets allow developers such as mining companies to buy/manage land, or pay money into a fund, to compensate for the clearing of forests and areas containing threatened plants and animals.
Community groups such as HSI are concerned that the method for calculating biodiversity offsets in NSW, contained in the NSW Policy, does not properly protect the environment – including the plants and animals on the national list of threatened species and ecological communities.
The Australian Government, which is responsible for the national list of threatened species – and has international obligations to protect and conserve biodiversity in Australia – has stated that the NSW Policy meets national standards of environmental protection. However, analysis by EDOs of Australia shows clearly that the NSW policy provides weaker environmental protection than required under national environment policies.
With the Australian Government delegating more and more development approval powers to the states and territories under its ‘one stop shop’ policy, community groups fear that there will be fewer protections for our nationally threatened species and ecological communities.
HSI is therefore seeking access to documents detailing the Australian Government’s analysis of the NSW Policy. Access to this information is vital for the public to have confidence that important environmental protections are not being eroded.
Rana Koroglu, Senior Solicitor at EDO NSW, has carriage of this matter for HSI.
- EDO NSW media release: FOI legal win reveals NSW offsets policy fails to meet national environmental standards - but was accredited anyway
- Blog post: The political endorsement of extinction
Offsets policies failing to protect threatened species, 5 May 2014
- Federal handover of environmental approval powers to the states
NSW biodiversity offsets policy for major projects
- Link to this case summary
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NCC v Min for Primary Industries 2018
Nature Conservation Council of NSW, represented by EDO NSW, has commenced proceedings in the Land and Environment Court to challenge the decision of the Minister for Primary Industries to make the Land Management (Native Vegetation) Code 2018 (2018 Code) under the Local Land Services Act 2013 (NSW).
The 2018 Code was made on 9 March 2018, only a few hours after the Land and Environment Court, on application by the Nature Conservation of Council of NSW, invalidated the Land Management (Native Vegetation) Code 2017 (2017 Code) and quashed the Minister for Primary Industries’ decision to make the 2017 Code. The 2018 Code is identical in nature and came into force on 10 March 2018. It allows landholders to carry out significant amounts of self-assessed clearing of native vegetation without further approval or environmental assessment, including in areas with endangered ecological communities, and threatened species.
While the 2017 Code was intended to be released with native vegetation regulatory maps to assist landholders to identify where clearing of native vegetation on rural can and cannot occur, the release of those maps was significantly delayed. They are in fact still yet to be released, which means landholders continue to be required to self-assess whether such land management clearing codes apply to their land.
Nature Conservation Council of NSW is arguing that the 2018 Code is invalid because the Minister for the Environment did not lawfully fulfil her concurrence role. Upon the basis of documents received under freedom of information laws, it appears that the Minister for the Environment failed to give proper, genuine and realistic consideration to the decision to grant concurrence to the Minister for Primary Industries to make the 2018 Code, and to principles of Ecologically Sustainable Development (ESD), as was required by law. The documents indicate that the Minister for the Environment did not have sufficient time or material to enable to her to make the decision, and that as a result, the 2018 Code was made unlawfully.
In discharging her duty to have regard to the principles of ESD, Nature Conservation Council of NSW says that the Minister for the Environment, as the Minister responsible for administering the Biodiversity Conservation Act 2016 (BC Act), had a specific obligation to give proper, genuine and realistic consideration to the precautionary principle, inter-generational equity and the conservation of biodiversity and ecological integrity, and to consider how the making of the 2018 Code itself would affect those principles. In doing so, Nature Conservation of Council NSW is arguing that this obligation - when properly understood in the context of the BC Act - included a requirement to consider the contribution that clearing of vegetation under the 2018 Code would make to greenhouse gas emissions, and the impact of climate change on the conservation of biological diversity and ecological integrity, or the ability of the present generation to ensure the health, diversity and productivity of the environment is maintained for future generations. On the face of the documents, it appears that the Minister for the Environment did not fulfil this important obligation.
Given the challenge to the 2017 Code did not proceed to a hearing before the Court, this will be the first case to test the new provision of the Local Land Services Act, which allowed for the making of the 2018 Code.
We are most grateful to barristers, Jeremy Kirk SC and David Hume for their assistance.
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Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and NSW Minister for Planning
EDO NSW represented local community group, Upper Mooki Landcare, in its legal challenge in the NSW Land and Environment Court to the approval of mining company Shenhua’s open cut coal mine on one of Australia’s most productive farming areas, the Liverpool Plains in north-western NSW.
On 19 February 2016 the Court dismissed our client's case, finding that the approval of the mine is valid. This means that the mine can go ahead subject to the conditions of the approval. Read the judgment.
If the mine goes ahead, it will lead to the clearing of 847 hectares of koala habitat.
These were judicial review proceedings arguing that the NSW Planning Assessment Commission (PAC), which approved the mine on behalf of the NSW Minister for Planning, failed to properly consider whether the mine was likely to significantly affect koalas, a threatened species, as required by the Environmental Planning and Assessment Act 1979 and the Threatened Species Guidelines.
The group contends that the PAC failed to assess whether the mine would place a viable local population of Koalas at risk of extinction, as required by NSW Environmental Planning and Assessment Act 1979.
Koalas are currently listed as vulnerable to extinction in NSW under State and Federal law after numbers dropped a third over the past 20 years. This means they are facing a high risk of extinction in NSW in the medium-term future.
The PAC stated: “The [Gunnedah Koala] population has reduced significantly, as a result of droughts and heatwaves, with the estimated reduction of up to 70% since 2009.”
The evidence before the PAC was widely varying in terms of the estimates of Koalas within the Gunnedah Local Government Area. Shenhua used population estimates of 12,753 animals for the entire Gunnedah Local Government Area. The Australian Koala Foundation estimates that there are only 800-1,300 animals in the Gunnedah Local Government Area.
The NSW Office of Environment and Heritage, in its submission to the mine assessment process, stated: “The assessment of significance [of impacts] for the Koala is totally inadequate. No details of the actual Koala population to be impacted upon, nor what impact the Project will have on the population is provided.”
The plan for managing the impact of clearing 847ha of the Koala habitat noted in the PAC’s report is that “the animals will be encouraged to naturally move away from the habitat that is being cleared. If the animals do not naturally move, then a translocation plan will be implemented”. There was evidence before the PAC that translocation programs have resulted in significantly high mortality rates.
A hearing took place from 31 August to 3 September in the NSW Land and Environment.
EDO NSW would like to thank barristers Patrick Larkin SC, Jennifer Stuckey-Clarke and Scott Nash for their assistance with the case.
Upper Mooki Landcare Group awarded Marie Byles Award
The Upper Mooki Landcare Group has won the Marie Byles Award at the 2015 NSW Environment Awards for their Land and Environment Court challenge to save the Breeza koalas on the site of Shenhua’s open cut Watermark coal mine on the Liverpool Plains. Congratulations Upper Mooki Landcare Group!
This award commemorates Marie Byles (1900-1979), the first female solicitor in NSW, and a passionate conservationist. This award is given to a group that has initiated an outstanding new environmental campaign and demonstrated strong commitment and passion for the conservation.
Image: Adi Firth
IFAW v NOPSEMA
The International Fund for Animal Welfare (IFAW), with the help of EDO NSW, obtained access to important documents on a decision to allow Bight Petroleum to undertake seismic exploration in blue whale feeding grounds near Kangaroo Island, off South Australia.
IFAW took legal action in the Administrative Appeals Tribunal in April 2015, after NOPSEMA refused to release its assessment documents and the full Environmental Plan for the seismic testing.
Bight Petroleum objected to the release of the full Environmental Plan on the grounds that the release would adversely affect its business affairs. The Environmental Plan is the regulatory document with which Bight Petroleum must comply; without the full plan there is no way for the public to ensure the company is meeting its obligations under the law.
In addition, NOPSEMA refused to release its own assessments on the basis the documents would reveal its deliberative process. Without NOPSEMA’s own assessment of Bight Petroleum’s environmental plan, there was no way for the public to verify if NOPSEMA is properly fulfilling its regulatory functions, which includes assessing the impacts from proposed developments on matters of national environmental significance.
This was the first seismic exploration licence that NOPSEMA assessed and approved since Environment Minister Greg Hunt handed over his approval powers to the industry regulator in February last year as part of the Australian Government’s plan to devolve environmental powers to States and industry bodies.
In January 2016, NOPSEMA released the documents by consent order of the Administrative Appeals Tribunal. Read more at our blog Petroleum exploration documents released for public scrutiny, 13 January 2016.
EDO NSW is grateful to barrister Natasha Hammond for her assistance in this matter.
Whale ship and whale. Source: New England Aquarium taken under permit authorized by NOAA
- Page for this case
- Petroleum exploration documents released for public scrutiny, EDO NSW blog 13 January 2016
- Legal challenge seeks documents on seismic testing in whale zones, EDO NSW blog, 28 May 2015.
Humane Society International v Kyodo Senpaku Kaisha Ltd
On behalf of Humane Society International (HSI), EDO NSW successfully acted in Federal Court contempt proceedings against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).
The Federal Court of Australia has ruled that Kyodo is in contempt of Court, and fined the company $1 million.
In January 2008, we successfully represented HSI in long-running Federal Court proceedings which resulted in the Court declaring that Kyodo was breaching Australia’s federal environmental law by whaling in the Australian Whale Sanctuary in the Australian Antarctic Territory. The Court granted an injunction to restrain Kyodo from further breaches of the Federal environment law.
Following the Court’s ruling, HSI representatives travelled to Japan and served the injunction on Kyodo. Despite this, Kyodo has continued its whaling activities in the Australian Whale Sanctuary. No enforcement action was taken pending the outcome of the International Court of Justice hearing into Japan’s whaling program.
In March 2014, the International Court of Justice found that Japan’s whaling program was not in accordance with scientific research programs provided under international law and ordered Japan to cease its whaling program. However, in October 2014, Japan announced its intention to recommence whaling under a new program that it again claims is for scientific research.
With Japan’s whaling program due to recommence around December 2015, HSI sought to enforce the 2008 injunction. On 18 November 2015, the Federal Court ruled that Kyodo is in contempt of Court for continuing to kill whales in the Sanctuary despite the 2008 injunction. The Court fined the company $1 million dollars. Read the judgment. View our case graphic.
We are grateful to barristers Jeremy Kirk SC and James Hutton for their assistance in this matter. Dr Alana Grech provided expert assistance to the Court.
Whaling footage ordered to be released – a win for public interest law!, EDO NSW blog, 24 May 2017
$1m fine for whaling company: Why is it so significant?, EDO NSW blog, 18 January 2016
We did it! Japanese whaling company fined $1 million in contempt proceedings, EDO NSW blog, 18 November 2015
Federal Court judgment, November 2015
How the Courts stopped Japan’s 'scientific whaling', EDO NSW blog, 1 April 2014
- The 2008 case, including case summary and judgment
- Page for this case
Positive Change for Marine Life v Byron Bay Shire Council and Byron Preservation Association Inc
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.
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Royal Botanic Gardens and Domain Trust
EDO NSW, on behalf of Bat Advocacy NSW Inc, bought proceedings in the Federal Court challenging a decision of the Minister for Environment Protection, Heritage and the Arts under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to approve the dispersal of grey-headed flying-foxes from the Royal Botanic Gardens in Sydney.
The Botanic Gardens colony of flying foxes is one of the largest camps in the Sydney metropolitan area. Occupancy at the gardens has been recorded at as high as 35,000 bats, representing approximately 8.5% of the total species population. Loss of roosting habitat is identified in the National Recovery Plan for the grey-headed flying fox as a high priority threat and the impacts of loss of long-term camps is not known. The challenge was brought on the grounds that the decision was an improper exercise of power conferred by sections 130(1) and 133 of the EPBC Act because the Minister failed to take into account a number of key matters.
In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts  FCA 113, Justice Cowdroy dismissed the application, rejecting all four grounds of appeal. The Court was satisfied that the Minister had regard to the impact of the action on critical habitat, social matters, the term of the approval and matters raised in public submissions, taking into account the documents before the Minister and the conditions of consent imposed.
Bat Advocacy appealed Cowdroy’s decision in relation to ground one only. The Full Court of the Federal Court dismissed the appeal in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts  FCAFC 59. Bat Advocacy made submissions that it should not be required to pay costs as the proceedings were bought in the public interest. In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2)  FCAFC 84 the Full Court rejected its application, finding that Bat Advocacy had not make out a basis for a special costs order.
EDO NSW thanks Geoffrey Kennett and Jason Lazarus of counsel for their work on this matter.
Judgment - Order on costs
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited
In 2013, EDO NSW represented the Bulga Milbrodale Progress Association in its appeal of an approval to extend to an open cut coal mine operated by Warkworth Mining Ltd (owned by Rio Tinto). The project would have extended the life of the mine for 10 more years (until 2031), allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village.
Controversially, the approval also allowed the open cut mining of part of a biodiversity offset that was required to be protected as a condition of the existing approval given in 2003. As well as providing habitat for threatened plants and animals, the offset area acts as a buffer between the village of Bulga and the mine. The offset area is ecologically significant, as it contains a unique and endangered ecological community, Warkworth Sands Woodland, and is home to threatened squirrel glider and speckled warbler. This Warkworth Sands Woodland is unique to the area and only 13 per cent of the original forest remains.
The Association also argued that the social impacts of the extension on Bulga residents would be unacceptable, particularly as a result of increased noise and dust. The Association also presented expert evidence about the economic impacts of the project. This was the first time that environmental economics had been presented before the court in deciding a mining project.
The Association sought refusal of the mine extension on the basis that the mining of the biodiversity offset is contrary to the public interest and ecologically sustainable development, and that the expansion will result in detrimental economic and social impacts on the Bulga community that are contrary to the principles of ecologically sustainable development.
The Land and Environment Court upheld the Association’s appeal and disapproved the project application. The Court concluded that the project would have significant and unacceptable impacts on biodiversity, as well as unacceptable noise and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the extension project should not go ahead.
Mining company appeal
Shortly after the Land and Environment Court’s disapproval of the project, Warkworth appealed to the NSW Court of Appeal, arguing that the Land and Environment Court had made legal errors in disapproving the project. The Court of Appeal unanimously dismissed Warkworth’s appeal, finding no fault with the Land and Environment Court’s decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species. The Court dismissed Warkworth’s appeal and ordered Warkworth to pay the Association’s costs.
EDO NSW is very grateful to Senior Counsel John Robson and Counsel Robert White for their advice and advocacy in the appeal, and to Counsel Robert White for his advice and advocacy in the matter at first hearing.
New application for the mine extension
In 2015, Warkworth lodged a new, but essentially the same, application for an extension to the mine. The Planning Assessment Commission held a number of public hearings into the application, which means that the community’s appeal rights to have the Land and Environment Court rehear the case have been extinguished. The PAC approved the new application in 2015.
EDO NSW continues to assist the Bulga Milbrodale Progress Association Inc in its tireless efforts to seek environmental and social justice.
We acted for the Hunter Environment Lobby in separate proceedings seeking access to documents relating to the new application.
Conservation of North Ocean Shores Inc v Byron Shire Council & Ors
CONOS (Conservation Of North Ocean Shores Inc) represented by EDO NSW was successful in its Land and Environment Court challenge to the development consent for the Splendour in the Grass Music Festival.
The Chief Judge of the Land and Environment Court has found that Byron Shire Council acted outside of its power when it granted consent to Splendour in the Grass to hold a music festival on high conservation value lands north of Byron Bay.
A significant part of the land the subject of the development consent is zoned for habitat protection under the Byron Shire Local Environmental Plan. The Court found that the development is properly characterised as a temporary place of assembly which is a prohibited use in the habitat zone.
The habitat zoning on the land was put in place after a detailed Commission of Inquiry in 1998 that had before it scientific evidence of the significance of the wildlife corridor on the land. The corridor is a regionally significant wildlife corridor linking coastal ecosystems to world heritage hinterland ecosystems. The development would have seen substantial earth works on the land to accommodate the music festival including a 25 metre wide tunnel excavated through the wildlife corridor requiring the removal of native vegetation and wildlife habitats.
EDO NSW was ably led by Mr Tomasetti Senior Counsel and Mr Eastman of Counsel. EDO NSW greatly appreciates their assistance in running important public interest matters.
Media - Northern Star
Humane Society International Inc v Minister for Environment and Heritage
EDO NSW acted for HSI in the Administrative Appeals Tribunal (AAT) appealing the Minister's declaration of the Southern and Eastern Scalefish and Shark Fishery Wildlife Trade Operation under the Environmental Protection and Biodiversity Conservation Act 1999.
EDO NSW has represented HSI at four mediations with the Minister and Australian Fisheries Management Authority representatives since September 2006, and succeeded in negotiating a number of significant draft additional conditions to the Wildlife Trade Operation. Final orders implementing the conditions agreed to at the mediations were made by the AAT on 21 February 2001.
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd
In this long-running case, EDO NSW acted for the Humane Society International Inc (HSI) against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo).
Note: In 2015, we are again acting on behalf of HSI to seek orders in the Federal Court that Kyodo is in contempt of the 2008 injunction described below. Read about the current case.
The proceedings were brought in the Federal Court of Australia. HSI sought a declaration that Kyodo breached the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act 1999) by whaling in the Australian Whale Sanctuary adjacent to Antarctica and an injunction to prevent them from continuing to kill whales there. In response, Japan claimed that it does not recognise Australia 's sovereignty over the Antarctic waters which constitute the whale sanctuary.
In a judgement handed down on 15 January 2008, His Honour Justice Allsop made a declaration that Kyodo was in breach of Australian law by whaling in the Australian Whale Sanctuary and granted HSI an injunction to restrain Kyodo from further breaches of the EPBC Act 1999.
HSI representatives travelled to Japan to serve the injunction upon Kyodo but so far no enforcement action has been taken. HSI has the option of taking enforcement action within Australia should the whaling ships enter Australian territorial waters.
You can find out more about this case and access court documents at www.hsi.org.au
Judgment - Application for leave to serve the originating process in Japan (23 November 2004)
Judgment - Application for leave dismissed (27 May 2005)
Judgment - Granting leave to appeal (27 May 2005)
Judgment - Appeal (14 July 2006)
Judgment - Application for leave granted (16 February 2007)
Judgment - Orders (18 January 2008)
Humane Society International Inc v Minister for the Environment and Heritage
EDO NSW represented The Humane Society International Inc (HSI) in the Administrative Appeals Tribunal in a case challenging a decision of the Minister for Environment and Heritage.
HSI sought merits review of the decision to declare fishing operations in the Southern Bluefin Tuna (SBT) Fishery to be an approved wildlife trade operation (WTO) pursuant to s 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The SBT is a highly endangered species, whose numbers have been severely depleted due to overfishing. The approval of the Minister will see fishing and export levels remain unchanged.
HSI challenged the Minister's decision on the basis that certain preconditions, including that the operation of the fishery would not be detrimental to the survival or conservation status of the SBT, could not be satisfied.
One of the central bases of HSI's challenge was that the Minister did not provide for quota reductions as a condition of approval. This is despite recent advice from the international Commission for the Conservation of Southern Bluefin Tuna that the overall catch for the SBT should immediately be reduced by 30% in 2006 or by 50% in 2007.
Southern bluefin tuna is considered severely overfished and the Minister's Threatened Species Scientific Committee has advised him that it meets the criteria for protection as an endangered species.
The Tribunal found that the approval of the SBT fishery would not be detrimental to the survival and conservation of the species and upheld the decision of the Minister to approve the SBT fishery as a WTO.
Whilst HSI was bitterly disappointed about the decision, it decided not to appeal and to pursue the campaign to protect this species through other means.
EDO NSW is grateful to Mr Patrick Larkin for his assistance with this matter.
Hunter Environment Lobby v Minister for Planning & Ashton Coal Operations Limited
Update: In November 2015 the NSW Court of Appeal dismissed Ashton Coal’s appeal of the decision in this case. Read about the appeal.
The Hunter Environment Lobby, represented by EDO NSW, appealed the NSW Planning Assessment Commission (PAC)’s 2012 approval of Ashton Coal’s expansion of its open cut coal mine next to the village of Camberwell in the Hunter Valley. The PAC had previously refused the expansion in December 2011, finding that it would have unacceptable impacts on human health due to air pollution, and on water resources, including Glennies Creek and the Hunter River. The refusal was based on submissions from the NSW Department of Health (including a report by the CSIRO) detailing regular breaches of air quality standards at Camberwell, and the NSW Office of Water, both opposing the project. However, the PAC’s 2011 refusal was reversed after the submission of a new report on health and water impacts by the NSW Department of Planning, and the PAC granted approval for the expansion to proceed in 2012.
The Land and Environment Court heard the Hunter Environment Lobby’s appeal in September 2013. The group was concerned about the impacts of the mine expansion on the health of nearby residents as a result of dust emissions (PM10 and PM2.5), loss of Aboriginal cultural heritage, reduced agricultural productivity, threats to key water resources and the economic justification for the project. The case was heard in Sydney, but the Court also attended a site visit in Camberwell, followed by the hearing of objector evidence. The Court also heard expert evidence from hydrologists, economists, air quality experts and archaeologists.
The Court determined that the approval could be granted for the expansion but that it must be subject to adequate conditions. Importantly, the Court determined that no development could be commenced by Ashton Coal until it has acquired “Rosedale”, a property which is located in the proposed mine pit, from its owner Mrs Wendy Bowman. This is because the project had been assessed on the basis that the Mrs Bowman would not be living there during the life of the project given the severe impacts from the mine on the residence. The Court also imposed a compensation condition for two neighbouring rural properties heavily impacted by the mine, including a dairy farm which has been in the same family since the 1830’s, one of the oldest farming families remaining in the Upper Hunter.
The Court also imposed strengthened conditions relating to the management of impacts to biodiversity, blasting conditions and land acquisition. With regards to dust, the Court declined to impose any specific criteria for fine particulate matter (PM2.5) given that current air quality standards for PM2.5 are only advisory. However the Court did strengthen conditions relating to the public’s ability to access information on air quality monitoring undertaken by Ashton.
EDO NSW is grateful to barristers Robert White and Corrina Novak who acted as Counsel for the Hunter Environment Lobby.
Maules Creek Community Council v Whitehaven Coal
EDO NSW, on behalf of the Maules Creek Community Council Inc (MCCC), on 6 June 2014 sought an injunction in the NSW Land and Environment Court to stop Whitehaven Coal from clearing the high conservation value Leard State Forest during winter when animals are hibernating and during spring when threatened bird and bat species are breeding.
The basis of the case was that the Biodiversity Management Plan (BMP), required under the approval for the Maules Creek Open Cut Coal Mine, stated that any clearing of the forest ought to be done outside of the winter and spring months. This was to allow the threatened species in this forest a fighting chance to survive the clearing of their habitat.
Whitehaven Coal sought to amend its BMP to allow clearing the forest through winter for the first year of its mining operations because it was behind in its mining development plans. The Department of Planning allowed Whitehaven’s amendment. MCCC argued that the amendment was invalid based on a failure to consult designated stakeholders and therefore the clearing that was taking place was unlawful.
The BMP is a legal document that provides for the management of biodiversity over the 22 year life of the mine. The mine will clear 1664 hectares of forest which provides habitat for species threatened with extinction including bats, birds, koalas, reptiles and forest owls. An area of 544 ha of this forest is a critically endangered ecological community. It is listed nationally as critically endangered and therefore it is facing an extremely high risk of extinction in the wild in the immediate future.
Shortly before a judgment was due on 12 June, following the hearing of the injunction application, Whitehaven gave an undertaking to the Court to halt the clearing until a judgment following a full hearing on the legality of the BMP, which was expected in early September.
Whitehaven subsequently lodged a new Biodiversity Management Plan (BMP). The Department of Planning and the Environment later approved the BMP with conditions which restricted clearing in the Leard forest to between February 15 and April 30 each year. These conditions stop Whitehaven Coal from clearing the forest in winter and spring, when native animals are at their most vulnerable. This was the objective of the MCCC’s legal action which was therefore discontinued.
EDO NSW and its client Maules Creek Community Council Inc and its many supporters from far and wide wish to sincerely thank Mr Howard SC and Mr Johnson for their able assistance in this matter.
Michael Ryan v The Minister for Planning, Lismore City Council & others
In 2014, EDO NSW, on behalf of Aboriginal elder Mr Michael Ryan, successfully challenged the validity of changes made to a Local Environmental Plan for the North Lismore Plateau, with the NSW Land and Environment Court, finding that the decision to remove environment protection zones from the plan was invalid.
The last minute amendments removed the only legal protection for important plants, animals and Aboriginal cultural heritage. The Environmental Plan originally protected 28.5 per cent of the 255 hectare North Lismore Plateau site. The rest of the rural land was mostly zoned for housing development.
The environmental protection zones had been included in the original proposal for the Local Environmental Plan amendment and were publicly exhibited by Lismore City Council. They were intended to protect Aboriginal heritage sites and areas of environmental value. These zones included regenerating lowland sub-tropical and dry rainforest, which provide habitat for threatened fauna, such as koalas, the Rose-crowned Fruit-dove, and threatened microbat species, as well as sites containing the rare native plant species, Thorny Pea and Hairy Joint grass.
The environmental protection zones were removed, apparently due to the Department of Planning’s ongoing review of the use of environmental zoning by councils in northern NSW.
Mr Ryan objected to the removal of the environmental protection zoning due to its potential impact on the cultural heritage and environment of the North Lismore Plateau. The basis of his objection related primarily to the fact that the Environmental Plan that was made was fundamentally different to the one everybody thought was being made and as it was publicly exhibited.
Mr Ryan argued that, in the circumstances, the LEP Amendment was not a product of the process set out in the Environmental Planning and Assessment Act 1979 for the making of Local Environmental Plans, and given that no opportunities for public consultation were provided in regard to the fundamentally altered LEP Amendment, there has been a failure to provide procedural fairness.
EDO NSW is grateful to barristers Philip Clay SC and Natasha Hammond who acted as counsel for Mr Ryan in this matter.
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited
EDO NSW acted for the Newcastle and Hunter Valley Speleological Society Inc (NHVSS) in its merits appeal against a decision of the Council to approve a limestone quarry in the Hunter Valley . The major issues on appeal were the impacts of the quarry on an endangered ecological community (EEC); the impacts on caves and cave dwelling fauna; and other broader issues and concerns of the resident objectors. The Court found that the proposal was not likely to significantly affect the EEC because there were sufficient measures in place to protect against any adverse impact.
The Court granted development consent to the quarry subject to stringent conditions. Noting the uncertainty as to presence of caves and cave-dwelling fauna, the Court applied the precautionary principle and imposed a number of adaptive management and monitoring requirements. The quarry is required to monitor for caves, voids, fissures and other geodiversity of significance, and to sample for underground fauna species on the site and outside the site for at least one year before the first blast takes place. In recognition of the value of the biodiversity on the site and the EECs affected, the quarry owner is required to conserve in the long term 60 hectares of land as an offset. The quarry owner is also required to remediate and conserve the 6 hectares of land that will be damaged by the quarrying activities. An independent panel of experts will monitor the development over the life of the quarry.
EDO NSW acknowledges Patrick Larkin and Chris Norton of counsel for their many hours of work on this case including numerous visits to the site.
Northern Inland Council for the Environment v Minister for Environment (Maules Creek and Boggabri Mine Cases)
EDO NSW acted for the Northern Inland Council for the Environment in challenging the Commonwealth approvals for two coal mines in the Leard State Forest near Boggabri in north-western NSW.
On December 20, 2013, the Federal Court dismissed both challenges, one for the Maules Creek mine, owned by Whitehaven Coal, the other for an expansion of the existing Boggabri Mine, owned by Idemitsu.
The projects will result in the clearing of 626 hectares of the critically endangered Box Gum Woodland and 2315ha of habitat for the endangered Swift Parrot, the endangered Regent Honeyeater, the vulnerable Greater Long-eared Bat, and the endangered climbing plant species Tylophera linearis.
The group argued that the Minister took into account matters that he was not permitted by law to take into account. It argued that the Minister had taken into account the leaking of commercially sensitive information about the projects by the NSW State Government and that information materially impacted on his decision to approve the coal mine projects.
The two approvals relied heavily on offsets to compensate for significant impacts on endangered communities and threatened species. Offsets are parcels of land, outside the project area, which are intended to compensate for the loss habitat for endangered species in the project area.
The group also argued that the Minister made a further legal error by not requiring independent verification of the offsets before the approval was granted, rendering the offset conditions imposed uncertain. It also argued that the Minister was required under the law to take into account approved conservation advices for listed threatened species and ecological communities, and he did not do so.
The Federal Court found that there was no legal error in the decision-making process. The Court found that the Federal Environment Minister’s decision was not materially impacted by the taking into account of the irrelevant material and that he had the power to approve the clearing of the Leard State Forest before biodiversity offsets have been established. The judge noted “this would undoubtedly be undesirable from the perspective of the environmental protection and preservation...” but was nevertheless permitted by the law.
EDO NSW is grateful for the assistance of barristers Sarah Pritchard SC and Craig Lenehan who acted as counsel for the Northern Inland Council for the Environment.
Oshlack v Iron Gates Pty Ltd and Richmond River Shire Council
EDO NSW acted for Al Oshlack to stop clearing for a subdivision on the controversial Iron Gates site at Evans Head. The site is bordered on three sides by national park and contained rare coastal rainforest, a wetland and an abundance of wildlife, including threatened species. The breaches of the development consent were found to be so serious that the consent was rendered null and void. In a landmark judgement, the Court ordered a full restoration of the site upon which substantial works had been done.
The Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd
EDO NSW assisted the Gerroa Environmental Protection Society (GEPS) in their Land and Environment Court appeal against the Planning Minister’s approval of an extension to a sand quarry at Gerroa on the NSW South Coast.
The development was approved as a major project under Part 3A of the Environmental Planning and Assessment Act 1979.
GEPS claimed that the safeguards contained in a sand mining approval did not go far enough, particularly with regards to endangered ecological communities on the site. GEPS launched a merits appeal seeking to have the approval overturned, or better conditions attached.
The hearing concluded on 10 March 2008 and the Court handed down its decision approving the development on 16 May 2008.
Although the quarry was ultimately approved, by bringing the action GEPS succeeded in pressuring the proponent to improve the development's environmental safeguards. The Court also attached additional conditions to the development consent with the result that the environmental impacts of the development have been markedly reduced.
The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage and Ors (2006)
EDO NSW filed proceedings in the Administrative Appeals Tribunal on behalf of the International Fund for Animal Welfare (Australia) Pty Ltd, the Humane Society International Inc and the RSPCA Australia seeking review of a decision made by the Commonwealth Environment Minister to allow the import of eight Asian elephants from Thailand to Taronga and Melbourne Zoos. The basis of the appeal is that the Minister's decision does not meet the animal welfare and conservation requirements of the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The Asian elephant species is listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as critically endangered, accordingly, permits to import the species can only be granted for certain specific, non-commercial purposes. The Zoos claimed that their non-commercial purpose is conservation breeding and they also applied to the Minister for approval of their breeding program. That approval was granted.
On 6 February 2006, the Administrative Appeals Tribunal handed down its decision. The Tribunal decided that permits to import Asian elephants should be granted to the zoos subject to a far more stringent set of conditions than those originally imposed by the Environment Minister. These conditions - which primarily relate to welfare - will go a long way towards providing a much more comfortable environment for these elephants, who will spend up to 60-70 years in urban zoos.
EDO NSW is grateful for the assistance of barristers Mr S Rares SC and Ms M Allars who acted as counsel.
Decision AATA - Decision permiting importation of elephants to Australia from Thailand subject to conditions.
Timbarra Protection Coalition Inc v Ross Mining NL & Ors
The Coalition, represented by EDO NSW, challenged the failure of a mining company, Timbarra Gold Mine, to undertake a Species Impact Statement for extensions to its mine in Malara State Forest.
The Coalition was unsuccessful in the Land and Environment Court but won on appeal to the Court of Appeal. The decision highlighted the legal requirement of an objective scientific assessment as part of the development assessment process and the obligations of decision-makers to fully consider the likely impacts of development on threatened species, rather than relying only on information supplied by developers.
This has significant implications for the protection of threatened species and the environment generally in NSW.
EDO NSW is grateful for the assistance of Mr T F Robertson, barrister who acted as counsel for Timbarra Protection Coalition Inc.
Western Sydney Conservation Alliance Incorporated v Penrith City Council and Maryland Development Company Pty Ltd and St Marys Land Limited
These judicial review proceedings were bought by EDO NSW on behalf of Western Sydney Conservation Alliance Inc challenging approval by the Penrith City Council to four residential subdivisions on land containing the critically endangered Cumberland Plain Woodland, on the basis that Council had failed to take into account the Cumberland Plain Recovery Plan of February 2011, as required by the Environmental Planning and Assessment Act 1979 (EPA Act) and the Threatened Species Conservation Act 1995 (TSC Act).
In Western Sydney Conservation Alliance v Penrith City Council  NSWLEC 244 the Court held that Council had failed to consider the Recovery Plan as required under the EPA Act, as the Species Impact Statement and other documents before Council erred in their treatment of the recovery plan. The Court ordered that the operation of the consents be suspended and that the consents be validated upon the Council reconsidering the development applications, having regard to the details of the Recovery Plan. Each party was ordered to pay its own costs. The Court also confirmed a council’s responsibilities to consider and implement recovery plans under particular sections of the EPA Act and the TSC Act.
Following Council’s decision to regrant the development applications for subdivision with a minor alteration, this time taking into account the Cumberland Plain Recovery Plan, the Court considered a motion for orders under s 25C of the Land and Environment Court Act 1979 to validate the new consents. In a subsequent judgment, Western Sydney Conservation Alliance v Penrith City Council  NSWLEC 99 the Court held that the Council was required to revoke the suspended development consents but hadn’t done so, and it adjourned the matter to allow Council to do so.
On 15 May 2012 in Western Sydney Conservation Alliance Incorporated v Penrith City Council  NSWLEC 109, following Council’s revocation of the old consents, the Court made a number of orders, including a declaration that the terms of the Court’s suspension of the old consents had been complied with, that the new consents had been validly regranted and that the old consents had been revoked.
EDO NSW thanks Chris Norton of counsel who appeared on behalf of Western Sydney Conservation Alliance Incorporated.
Judgment - order that the operation be suspended in part
Judgment - Hearing of the notice of motion is adjourned
WWF-Australia v Department of Agriculture, Fisheries and Forestry
EDO NSW acted for WWF-Australia in the Administrative Appeal Tribunal against the Department of Agriculture, Fisheries and Forestry ('DAFF') in relation to a Freedom of Information matter. WWF-Australia appealed the decision of the Australian Bureau of Agricultural and Resource Economics ('ABARE') to refuse access to the responses of a number of farmers to questionnaires used by ABARE to obtain information and views about land clearing in NSW. ABARE is a division of DAFF.
In May 2007, the NSW Farmers Association joined the proceedings.
After negotiations between WWF-Australia and ABARE in early 2008, ABARE provided aggregated information about the underlying survey results to WWF-Australia. WWF-Australia was satisfied with the provision of this information and therefore discontinued the application on 4 April 2008.
Yass Environmental Responsibility Network Inc v Yass Council & Anor
EDO NSW, on behalf of Yass Environmental Responsibility Network Inc commenced judicial review proceedings in the Land and Environment Court to challenge development consent to a 175 lot subdivision at Yass. The primary issue in dispute was the impact that the development would have on a listed threatened species, being striped legless lizards (Delma Impar), and the fact that the proponent did not prepare a species impact statement to accompany the application.
Yass Environmental Responsibility Network raised the potential for the matter to be referred to mediation with the respondents. This course of action was subsequently agreed to by all parties and the matter was referred to a Court-appointed mediator. Commissioner Dixon of the Land and Environment Court presided over the mediation.
Through the mediation process the parties were able to come to an acceptable agreement. This included the finalisation of a conservation management plan for striped legless lizards and the imposition of restrictive and public positive covenants on the portion of land used for lizard habitat. By consent, the parties had the Court dismiss the matter on 12 October 2011.