EDO NSW has assisted community groups in their efforts to protect rivers and catchments from unsustainable uses of water resources, insufficient allocations for environmental flows, and unsustainable developments.
Water civil enforcement case
EDO NSW, on behalf of its client the Inland Rivers Network, commenced civil enforcement proceedings in the NSW Land and Environment Court in relation to allegations of unlawful water pumping by a large-scale irrigator on the Barwon-Darling River.
The two water access licences at the centre of these allegations allow the licence holder to pump water from the Barwon-Darling River in accordance with specified licence conditions, as well as rules set out in the relevant ‘water sharing plan’. The conditions and rules specify – amongst other things – how much water can be legally pumped in a water accounting year (which is the same as the financial year) and at what times pumping is permissible (which depends on the volume of water flowing in the river at any given time).
Our client alleged that the holder of these licences pumped water in contravention of some of these conditions and rules, thereby breaching relevant provisions of the Water Management Act 2000 (NSW) (WM Act). The allegations were based on licence data obtained by EDO NSW from Water NSW, a state-owned corporation charged with the responsibility of regulating compliance with the WM Act.
Analysis of this data, along with the relevant rules and publicly available information on river heights, indicates that the licence holder may have pumped significantly more water than was permissible on one licence during the 2014-15, 2015-16 and 2016-17 water years, and taken a significant amount of water under another licence during a period of low flow when pumping was not permitted in the 2015-16 water year.
Both allegations concern the potentially unlawful pumping of significant volumes of water, which may have had serious impacts on environmental flows in the river and downstream water users. However, our client is particularly concerned by the alleged over-extraction in the 2014/15 water year, as this period was so dry that the Menindee Lakes – which are filled by flows from the Barwon-Darling River – fell to 4 percent of their total storage capacity. This in turn threatened Broken Hill’s water security and led the NSW Government to impose an embargo on water extractions during part of that year in order to improve flows down the Barwon-Darling into the Lakes and Lower Darling River.
In these proceedings, the Inland Rivers Network is seeking, amongst other things, an injunction preventing the licence holder from continuing to breach the relevant licence conditions. In addition, and in order to make good any depletion of environmental flows caused by the alleged unlawful pumping, our client is also asking the Court to require the licence holder to return to the river system an equivalent volume of water to that alleged to have been unlawfully taken, or to restrain the licence holder from pumping such a volume from the river system, during the next period of low flows in the river system. Failure to comply with a court order constitutes contempt of court, which is a criminal offence.
EDO NSW is grateful to barristers Tom Howard SC and Natasha Hammond for their assistance in this matter.
Matt Floro, Solicitor at EDO NSW, has carriage of this matter for IRN.
- Legal update: Less water, less transparency (July 2018)
- Legal update: Using the law to protect the Murray-Darling Basin (November 2017)
- Four Corners investigation highlights our work to protect the Murray-Darling Basin (July 2017)
- Is carp herpes really a substitute for water in the Murray-Darling? (February 2017)
- EDO NSW case: Australian Conservation Foundation vs WaterNSW
- Fact sheet: Water Management
- EDOs of Australia submission to the Inquiry into the Integrity of the Water Market in the Murray-Darling Basin
- EDOs of Australia submission to the Inquiry into National water Reform
Help defend the environment
With your support, we can continue to help community groups like Inland Rivers Network defend the environment. Please make a donation today.
Quipolly Water Action Group Inc v NSW Department of Industry
Our client, community group Quipolly Water Action Group (QWAG) successfully gained access to documents relating to the regulation of groundwater at the Werris Creek coal mine. The mine is located in north-west New South Wales near the Liverpool Plains and is owned by Whitehaven Coal.
The community group first requested access to the documents from the NSW Department of Industry, but was refused because the Department determined that the documents were ‘commercial’.
On behalf of our client, we requested the NSW Information Commissioner to review the Department’s refusal to release the documents. The Commissioner agreed that the Department’s decision was 'not justified'. However, the Commissioner’s decision was not binding, and the Department continued to refuse to release the documents to our client.
As a result, in early September 2016 we commenced proceedings in the NSW Civil and Administrative Tribunal (Tribunal), whose decision on whether the documents should be released would be binding.
On behalf of our client we argued that the documents are not commercial, in the legal sense, and that it is in the public interest to release these documents: groundwater is a critical shared resource, and it is important that the community knows what impact mines are having on groundwater and how the government is regulating such impacts.
On 27 September 2016 the Department made a decision to release the documents to our client. However, this new decision had the effect of renewing Whitehaven Coal’s third party appeal rights, meaning that access by at least 40 working days, or longer if Whitehaven decided to join the proceedings.
In mid-October, we appeared before the Tribunal to argue why the documents should be released to our client before the expiry of the 40 working day period.
On 8 November 2016, the Tribunal published its preliminary decision, which agreed with our argument that the Department’s 27 September decision to conditionally release the documents was invalid because it was made after the proceedings were filed. The Tribunal also agreed to allow Whitehaven Coal seven days to join the proceedings so as not to prejudice any appeal rights. The Tribunal ordered that if Whitehaven failed to join the proceedings, the Department was to provide the documents to our client.
On 24 November 2016, we again appeared on behalf of QWAG in the Tribunal. As Whitehaven had not joined the proceedings, the Tribunal made an order for the documents to be released to our client within 24 hours.
With this decision, the community will gain unprecedented insight into how the the NSW Department of Industry is regulating the impacts of this and other coal mines in NSW. It is an important win for the public interest.
- Page for this case
Community granted access to information on groundwater regulation at Werris Creek coal mine
media release, 24 November 2016.
A dried up section of Quipolly Creek near the Werris Creek coal mine
4nature Inc v Centennial Springvale Pty Limited and Others
In August 2017, the NSW Court of Appeal found in favour of our client 4nature in its landmark legal action to protect Sydney’s drinking water catchment from the impacts of Springvale coal mine. However, changes to the law in October 2017 have since retrospectively validated the approval of the mine.
Springvale coal mine, operated by Centennial Coal, lies beneath the Newnes State Forest in the Blue Mountains. In September 2015, the NSW Planning Assessment Commission (PAC) approved an extension to the mine operations that allowed the mine to discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment.
The PAC’s approval allowed Centennial Coal to extract 4.5 million tonnes of coal from the Springvale mine every year for a further 13 years. Millions of litres of highly saline mine water was permitted to be discharged every day into the Coxs River, which flows into Lake Burragorang, Sydney’s major drinking water reservoir. Water discharged from the mine also contains nitrates, phosphates, zinc, nickel and other contaminants.
Following the PAC approval, on behalf of 4nature Inc, EDO NSW launched landmark legal action against the owners of the mine (Centennial Springvale Pty Limited and Springvale SK Kores Pty Limited) and the Minister for Planning in the NSW Land and Environment Court. The case argued that the approval was unlawful because the PAC could not be satisfied the development would have a ‘neutral or beneficial’ effect on water quality in the catchment – a standard introduced by the NSW Government in 2009 specifically to protect Sydney’s drinking water catchment.
The NSW Land and Environment Court found the PAC’s approval was lawful and that the extension could proceed. However, 4nature appealed that decision in the Court of Appeal. The challenge was successful, with the Court overturning the Land and Environment Court’s decision and determining that the PAC’s approval was in fact unlawful.
A further hearing was set to take place in October 2017 to determine what orders should be made following the Court of Appeal’s finding that the consent was unlawfully granted. On behalf of 4nature, we filed five expert reports and affidavit evidence addressing the environmental impacts of the continued operation of the mine and the financial and economic implications of mine closure, including in relation to the energy market.
However, the week before the hearing was due to take place the NSW Parliament passed a Bill which retrospectively validated the PAC's approval of the mine. The Bill also altered the laws on protection of Sydney’s drinking water to allow projects like the Springvale mine to be assessed against current pollution levels (as opposed to the test set out by the Court of Appeal, which required such applications to be assessed against water quality that would occur should the project not be approved). The law in relation to completely new project applications has not changed and the test set out by the Court of Appeal for water quality will continue to apply to such applications.
This was the first case to test laws passed in 2009 that were introduced to protect Sydney’s drinking water catchment. Under those laws, a development cannot be approved unless the consent authority is satisfied that the development will have a ‘neutral or beneficial’ effect on water quality. Since the changes made by Parliament in October 2017, that test will be applied differently for applications for continuation of existing projects than for completely new development applications in the catchment.
Rana Koroglu, Senior Solicitor at EDO NSW, had carriage of this case for 4nature.
EDO NSW is grateful to barristers Richard Lancaster SC and Nicholas Kelly for their assistance in this matter.
Help defend the environment
With your support, we can continue to help community groups like 4nature defend the environment. Please make a donation today.
Barrington-Gloucester-Stroud Preservation Alliance Incorporated v Planning Assessment Commission and AGL Upstream Infrastructure Investments Pty Limited
Update: On 4 February 2016, AGL announced that it will not proceed with the Gloucester Gas Project.
EDO NSW, on behalf of Barrington-Gloucester-Stroud Preservation Alliance Inc. commenced judicial review proceedings against two decisions of the Planning Assessment Commission (PAC) to approve parts of the Gloucester Gas Project.
The Gloucester Gas Project involves 110 coal seam gas wells within a 210km area between Barrington and Great Lakes, transporting the gas from the processing facility to the existing gas supply network via a 95-100 km pipeline traversing several local government areas, and a gas delivery station at Hexham. The Alliance is concerned about the risks of surface and groundwater contamination and the lack of data about groundwater impacts.
The key issue raised by the Alliance in the hearing before the Land and Environment Court was that the PAC failed to properly apply the precautionary principle in approving the development on the basis of only preliminary groundwater investigations, and that certain conditions imposed in relation to groundwater and wastewater left open the possibility of a significantly different development from that for which approval was sought and were therefore uncertain. Justice Pepper dismissed the claim, stating that the conditions imposed in relation to the project were within the permissible limits of Part 3A, were not uncertain with respect to impacts, and that the precautionary principle was adequately considered by the PAC in granting the project approval.
In relation to ecologically sustainable development (ESD) the Court held that, although there is no direct reference to ESD principles contained within s 7 of the Environmental Planning and Assessment Act 1979, the Minister is nevertheless charged with the responsibility of promoting development for the purpose of carrying out the objects of the Act, one of which is ESD. However, the Court concluded that the (decision maker) was obliged to consider ESD principles only “at a high level of generality”, no particular method of analysis or the outcome that should result from this consideration is mandated, and consideration of ESD principles does not require specific reference to the particular principles comprising ESD.
EDO NSW acknowledges and thanks Richard Lancaster SC and Nick Eastman for their advocacy and advice in this matter.
See our more recent case relating to AGL's CSG activities in Gloucester: Watts v Department of Planning and Environment
Darling River Action Group Inc v Director General Department of Natural Resources
On 14 September 2007, the Director General of the Department of Natural Resources (QLD) revoked the decision to auction 8000ML of unallocated water from the Warrego catchment.
As a result, the Darling River Action Group Inc, represented by EDO NSW, has withdrawn its case in the Supreme Court of Queensland challenging the auction.
The Broken Hill based group were challenging the auction on the basis that they would be adversely affected by the auction and that they had not had an opportunity to be heard regarding the decision. The auctioning of 8000ML of water - the equivalent of 4000 Olympic swimming pools - would have had significant adverse impacts for the already severely stressed Darling River, which has dried up along much of its length due to overextraction upstream.
Nature Conservation Council of NSW Inc v the Minister for Sustainable Natural Resources
In 2003, EDO NSW represented the Nature Conservation Council (NCC) in a case challenging the validity of the water-sharing plan for the Gwydir Regulated River Water Source because it failed to address environmental necessities. NCC argued that the plan had failed to specify performance indicators or establish environmental water rules in respect to both environmental health water and supplementary environmental water. However, in February 2004, the Land and Environment Court dismissed the appeal, finding the plan was validly made.
EDO NSW was granted special leave to appeal to the High Court in late 2005. Unfortunately, the NSW Government subsequently passed legislation to retrospectively validate all water sharing plans made under the Water Management Act 2000, including plans that may have been invalidly made. As a result, the Nature Conservation Council (NCC) was forced to abandon its High Court challenge to the Gwydir Water Sharing Plan.
Snowy River Alliance Inc v Water Administration Ministerial Corporation and Snowy Hydro Limited
EDO NSW acted for the Snowy River Alliance Inc ('SRA') in their challenge to the Water Administration Ministerial Corporation's ('WAMC') review of the Snowy Hydro water licence and a subsequent variation to the licence.
The Snowy Hydro Corporatisation Act 1997 (NSW) ('Act') requires the WAMC to conduct a review of the obligations under the licence relating to the ‘Snowy River Increased Flows’ and to exhibit a copy of any state of the environment reports prepared by the Snowy Scientific Committee (‘SSC’).
On 23 July 2010, EDO NSW commenced proceedings in the Supreme Court of NSW on behalf of the SRA challenging the validity of the review. SRA argued that the WAMC's review failed to meet the description of ‘review’ as required by the Act and failed to exhibit any SSC reports prior to the review. If the review was found to be invalid, the variation to the licence may also have been invalid.
The matter was heard before the Supreme Court on 14 March 2011. On 30 June 2011, Justice Hislop delivered judgment dismissing SRA’s legal challenge. In recognition of the public interest arguments of the Snowy River Alliance, the Court made no order as to costs.
EDO NSW is grateful to Stephen Free of counsel for his assistance with the case.
Judgment - Order on costs
Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors
Represented by EDO NSW, Bruce Wilson on behalf of the Gurrungar Environment Group appealed against a consent for a cotton farm at “Beemery” near Bourke on the grounds that it was not ecologically sustainable.
The development included a large water storage facility for irrigation and, due to the risk of salinity, had a limited lifespan. The matter finalised with the parties agreeing on stringent consent orders including conditions for groundwater monitoring, controls on clearing and the ban of the use of herbicides in the irrigation area.
These conditions set the standard against which future cotton developments will be measured.