Can community members afford access to justice?

KIRSTY RUDDOCK*

Being exposed to cost orders in the courts is one of the major impediments to community members starting or continuing litigation to protect the environment in the public interest. Recently, there was a decision in the Land and Environment Court of NSW that will have significant consequences for community groups seeking to enforce breaches of planning or environmental laws in the future.

The case

In Illawarra Residents for Responsible Mining v Gujarat NRE Coking Coal Ltd [2012] NSWLEC 259, Justice Sheahan has taken a narrow view of whether a residents group concerned about the impacts of mining on their community represents the public interest. He has ordered Illawarra Residents for Responsible Mining (represented by EDO NSW) to pay $40,000 as security for Gujarat’s legal costs to the Court before the case was allowed to proceed. Unsurprisingly the group could not pay this amount and the case has been discontinued.

The consequences

As a result, the issue of whether Gujurat’s current mining activities were unlawful because longwall mining had proceeded without an assessment and approval under the Environmental Planning and Assessment Act 1979 (NSW) will not be determined. This means that the community will not have the opportunity to comment on the plan for underground mining under the drinking water catchment of the Sydney and Illawarra region.

The precedent

This judgment could now be used by other mines and property developers to stifle future public interest litigation. In particular, Justice Sheahan did not accept the evidence from the public officer of the group that the order would mean the proceedings could not continue, and indicated that only evidence from all of the members of the group that they personally could not raise the money necessary to post security would have been enough to satisfy the Court’s concerns.

EDO NSW perspective

In this case, the residents were “mums and dads” who lived near the mine and were concerned not only about the public health issues associated with coal dust from the mine’s operation next to their homes, but the environmental impact of the mine on the escarpment’s biodiversity and drinking water catchment. It appears the Court considered these concerns to be merely about “amenity”.

Our conclusion

  • Fundamental to our current planning system is the need to ensure that rigorous environmental assessments occur and strict conditions are placed on approval of projects that could have a significant impact on the environment.
  • Without enabling the community to have a say through a proper environmental assessment, what checks and balances are there to ensure that mining is done to the best environmental standards?
  • Security for costs orders in such circumstances result not only in the denial of access to justice, but mean that our planning laws will continue to be undermined.

It is therefore vital that planning system reforms ensure that community groups are not impeded in accessing justice and good planning and environmental standards in the future.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW

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