cases2018 at EDO NSW

EDO NSW cases2018


Murray-Darling Basin Senate vote

On Wednesday night (9 May 2018), the Australian Senate voted in support of an amendment to the Murray-Darling Basin Plan that will reduce the actual recovery volume of water for the environment by 605GL. 

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

EDO NSW, on behalf of the Australian Coal Alliance (ACA), filed a case in January 2018 against the NSW Minister for Planning 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. 

The case was heard in the Land and Environment Court over three days in November 2018.

Update: Judgment was delivered on 22 March 2019 and the case was dismissed. In consultation with its client ACA, EDO NSW is considering further options.

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 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 the current day, considering the public interest in 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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Inside 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.

Isaac St Clair-Burns, Solicitor at EDO NSW, has carriage of this matter for ACA. 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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Gloucester Resources Limited v Minister for Planning & Groundswell Gloucester Inc

Groundswell Gloucester, represented by EDO NSW, was joined to proceedings that would 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 was 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 handed down on 8 February 2019.

Update Friday 8 February, 2019: A win for climate and community! Read our media release on the judgment >>

Read the judgment in full >>

Update Thursday 9 May 2019: There will be no appeal of the Rocky Hill judgment

Background to the case

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 opposed 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 would 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.”

The case was heard in August 2018, with evidence from expert witnesses on visual and noise impacts, climate science and energy finance, the economics of coal, town planning and the social impacts of a mine on the town’s doorstep.

The court heard from Emeritus Professor Will Steffen, who gave evidence on climate change science and the carbon budget; energy analyst Tim Buckley on the risk that the coal mine would become a stranded asset, given market trends away from coal; acoustics expert Stephen Gauld on the noise nuisance from the mine; and anthropologist and expert on regional communities and displacement Hedda Askland on the social impacts should the mine go ahead.

Sixty community objectors, including farmers, doctors, Traditional Owners, old and young people, gave evidence. Some were opposed because of noise impacts, others worried about how the mine might tear at the fabric of their community. Many were concerned about the kind of world their children and grandchildren will live in if projects like this, which contribute to climate change, continue to be approved.

In closing, Counsel Robert White for Groundswell Gloucester concluded:

“We say, your Honour, that the settled evidence before this Court is based on the scientific consensus that the urgent need is for greenhouse gas emissions to be reduced rapidly around the world, and in this country, to the fullest extent possible if the world is to have any chance to meeting the well below 2 degrees Celsius target enshrined in Paris.  We submit, your Honour, that GRL has been unable to prove through its evidence in this case that the approval of the mine will reduce carbon dioxide emissions, not increase them.”

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.

Further information about this case:

 


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Humane Society International Australia Inc v Great Barrier Reef Marine Park Authority

Humane Society International Australia (HSI), represented by EDO NSW, sought 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 lodged an appeal in the Administrative Appeals Tribunal (AAT) which required a full reconsideration of the approval of the shark control program. The 10-year lethal control program targets 19 shark species in the Marine Park, including threatened and protected species. [The program originally targeted 26 species but seven were removed in July 2018.] The appeal was based on the public interest in protecting the biodiversity of the Great Barrier Reef Marine Park. The case was heard in the Administrative Appeals Tribunal from 30 January to 1 February 2019.

Video: A case for sharks

2 April 2019: The legal challenge was wholly successful, with the AAT finding that the Shark Control Program within the Marine Park must avoid the lethal take of sharks. More here >>

12 April 2019: The Queensland Department of Agriculture and Fisheries appealed the AAT decision. The Federal Court granted a temporary stay of the AAT orders which will remain in place until that appeal is heard later in the year. 

Background: 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 was presented with expert evidence based on the best available science relating to shark control programs.

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, Natasha Hammond and Dr Chris McGrath for their assistance in this matter.

More on this case:

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Help defend the environment
With your support, we can continue to help community groups defend the environment. Please make a donation today.