Some funding certainty for 2013-14, but challenges remain

JEFF SMITH*

We have some good news and some bad news for the thousands of community groups and individuals who rallied to support EDO NSW during our funding crisis of late last year.

Your voices and, from many of you, your donations have been invaluable to demonstrating the extraordinary community support for EDO that exists across NSW.

As you’ll recall, in 2012 we faced unprecedented attacks in public, in the parliament and also behind the scenes from the mining industry, the Shooters and Fishers Party and The Australian newspaper, with pressure for EDO NSW to be ‘defanged’, and calls for us to be defunded by the NSW Government.

The good news first
EDO NSW has been granted $1.2 million in funding for the financial year 2013-14. EDO NSW is delighted that the Public Purpose Fund of the Law Society of NSW (PPF), our main source of income, has continued to support our public interest environmental law service for the people of NSW, from the cities to the regions and remote rural areas. At one stage it appeared that our entire funding was under serious threat, such was the intensity of the attacks on the EDO, but for now at least the worst has been averted. The new PPF allocation means that for the next year we can maintain most if not all of our operations, including our regional office in Lismore in far northern NSW. The PPF decision provides us with a full year of funding certainty. This is less than the three-yearly funding agreements that applied until last year, but much better than the three-months-at-a-time funding allocations that have applied in recent months. You can now approach 2013 and the first half of 2014 with significantly restored confidence that EDO NSW will be able to assist you, after a very demoralising period in 2012 for the office.

The bad news
Support from the PPF has been reduced by about 27% in 2013 by comparison to the 2012 calendar year. You’ll recall that this very significant reduction was already in place for the first six months of the 2013 year, January to June. It means that our core PPF funding has been reduced from $1.64 million a year (or about $410,000 a quarter) to $1.2 million a year (or $300,000 a quarter) so we’re still facing a substantial shortfall compared to previous years. The PPF noted that the current reduction is based on a decline in its own earnings and reserves, due mainly to prevailing lower official interest rates in Australia affecting its income from monies held in solicitors trust accounts. 

Thank you
Once again, the EDO team wants to thank all of our clients past and present, and our many supporters in the community and the legal profession, who have stood by us so strongly to save EDO NSW. We know there are many challenges ahead and we need you to maintain your support so that the EDO can keep on defending the environment and heritage under the law. This is especially important with the major planning law reform process now under way in NSW.

*Jeff Smith is the Executive Director of EDO NSW

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The limits of adaptive management

KIRSTY RUDDOCK*

Last week the Land and Environment Court applied the precautionary principle and refused a mining project that provided insufficient information in its environmental assessment about the impacts of the mine on groundwater and surface water. The case sets an important benchmark in environmental decision making that can now be applied to all planning decisions.

The case
In SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Ltd [2013] NSWLEC 1031, Commissioner O’Neill and Acting Commissioner Adam refused the continued operation of the Berrima Colliery. The expansion application sought to double the output from the Berrima Colliery to 440,000 tonnes per year and allow continued operation for eight years. Southern Highlands Coal Action Group (SHCAG) argued that Boral did not adequately consider the impact the project would have on the local groundwater resources, groundwater biodiversity, and the Wingecarribee River in preparing its environmental assessment, and that the impacts of the project on groundwater, groundwater ecologies, and surface water pollution are inconsistent with the principles of Ecologically Sustainable Development, the Wingecarribee Local Environmental Plan, and State Environmental Planning Policy (Sydney Drinking Water Catchment).

The consequences
As a result of the decision Boral will not be able to continue the operations until they submit and have approved a further Environmental Assessment. While this will have a significant impact on their operations, it emphasises the importance of ensuring detailed environmental assessments and baseline monitoring are completed prior to seeking approval for a mining project.

The precedent
The Court stressed that the preparation of a management plan as a condition of consent is not a panacea to overcome the necessity to consider all of the environmental impacts of a proposal. In this case there was an absence of monitoring data to calibrate and confirm Boral’s assumptions and therefore the Planning Assessment Commission had not considered all of the impacts and the means of controlling them. The Court was therefore satisfied that the precautionary principle is activated and that the Boral had not established that its activities would not cause harm to the environment. The Court also found that they could not determine appropriate conditions to address these impacts as there was not adequate information before them to allow for the imposition of clear limits in the approval that can be adaptively managed to ensure they are met. Adaptive management requires precise limits on the cumulative operations of the colliery which the evidence showed did not exist in the Water Management Plan.

Importantly the Court also found it was required to assess not only the new impacts but the continued impacts of dewatering over the whole mine workings. This was important here as some of the impacts related to the previous mining activities, and the mine had argued that only the new impacts should be considered.

The Court also found the residents had valid concerns about noise dust and safety impacts on the Medway Road through Medway village. They found the road was unsuitable for 132 truck movements per day and the haulage road needed to avoid the village.

EDO NSW perspective
The Court has not in recent years applied the precautionary principle to refuse a mining operation. The case is important in strengthening the environmental standards that apply to environmental assessment. It has also set limits on the use of adaptive management, so that it cannot be used to overcome the deficiencies in Environmental Assessments.  This will ensure that the onus is on companies to show through baseline monitoring and other assessments that their project is not likely to cause environmental harm.

Our conclusion
The case will be useful for all communities affected by mining and will provide guidance  to people making submissions on environmental assessments.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW

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