Pindimar Bundabah Community Association Inc v Great Lakes Council & Ors
EDO NSW represented the Pindimar Bundbnah Community Association (PBCA) in proceedings brought in the Land and Environment Court against Great Lakes Council, Port Stephens Council and a developer. PBCA challenged Great Lakes Council's decision to allow New South Wales' first land-based abalone farm to be developed on the edge of Port Stephens estuary on the Mid-North Coast. PBCA, a local community group, has been fighting the controversial development proposal for nearly six years.
The PBCA argued that the proposed abalone farm should be refused on the basis that it would impact on the wild abalone populations and seagrasses and would affect water quality and other aquatic ecological communities. It also argued that the proposal was inconsistent with the Port Stephens Local Environmental Plan and State Environmental Planning Policy No. 62. SEPP 62 applies to pond-based and tank-based aquaculture, including tank culture of abalone. SEPP 62 also lists the types of zones in which the different types of aquaculture are permitted.
In addition to expert evidence, the PBCA relied on the principles of ecologically sustainable development, including the precautionary principle, to support its arguments.
A marine ecologist engaged by EDO NSW stated that construction and maintenance of the pipes to service the farm would cause significant damage to seagrass beds along the pipeline routes and discharge nutrient enriched water into the estuary which could have adversely affected the fragile ecosystem. These impacts directly conflicted with the Department of Primary Industries' Fish Habitat Protection Plan No. 2: Seagrasses which applies to all coastal and estuarine waters of NSW. The Plan aims "to ensure there is no net loss of seagrasses within the coastal and estuarine waters of NSW".
According abalone management and disease experts engaged by EDO NSW, the development could also have affected wild populations of abalone in Port Stephens. Wild abalone populations in the Port Stephens area are already seriously affected by over-fishing, including illegal fishing, and the parasite Perkinsus. The spread of disease within wild populations is a serious concern, likely to be exacerbated by the development.
The case was heard by Chief Justice Preston and Commissioner Adam on 20-22 March 2007. In a preliminary hearing, Chief Justice Preston held that the proposal was not prohibited by the site location requirements of SEPP 62. However, during the hearing of the case, it became clear from the developer's responses to questions posed by Chief Justice Preston that there were a significant number of uncertainties about the way in which the development would occur, including its ability to remove nutrients before discharging water into the estuary. The developer was also unable to produce accurate plans in relation to various aspects of the development. Accordingly, the respondents agreed to the making of consent orders allowing the PBCA's appeal.
EDO NSW is grateful to barrister J E Lazarus for his assistance in this matter.