Five big challenges for the Planning White Paper – Challenge #4


Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

4. Code Assessment – all targets, no limits?
The biggest change in the White Paper’s approach to development assessment is to introduce ‘code assessment’ as the new, and predominant, assessment track. Code assessment would transform community consultation on neighbourhood development across a range of residential, commercial and industrial projects, by requiring standards to be set upfront in the Local Plan (in part through community consultation), and removing site-by-site consultation. Projects that comply with a Code would have to be approved by local councils, within 25 days. The White Paper sets a mandatory target of 80% code assessed development (or smaller-scale exempt and complying) within 5 years. Under-performing council standards would be replaced with departmental guides.

It is a high-stakes proposal from a community engagement perspective – and it’s safe to say the wider public are not really in a position to  know much about code assessment at this formative stage. No one wants a system where – say, two years from now – there is just as much angst about neighbouring development, but far less the community can say about it. There needs to be greater community understanding and input about codes (and their limits) before setting ambitious targets.

There is no doubt that code assessment could deliver faster approvals for developers – but the quid pro quo should be a commitment to high-quality building design and nation-leading sustainability requirements. Unfortunately, while the White Paper has a chapter on building design and certification, there is no commitment to update or expand the BASIX building sustainability tool to provide for better water, energy and material efficiency across residential, commercial and industrial codes. Nor does the White Paper start from the premise of fast-tracking environmentally friendly development through code assessment.

All that being the case, the White Paper’s assumption that 80% of developments can be code-assessed without any significant or cumulative environmental impact is given no evidentiary basis. If code assessment proceeds, clear limits and safeguards will be very important. For example:

  • Codes should be excluded from all areas of high conservation value, environmental sensitivity and cultural heritage significance;
  • Codes will also need to deal with cumulative impact considerations (the combined impact of thousands of fast-tracked medium-scale developments) and deal with interfaces between built-up areas and more sensitive areas;
  • The Government also needs to rule out code assessment for State Significant Development.

On Friday, this week’s final EDO NSW planning post looks at what rights will apply once developments are approved – or refused. Will the reforms restore an equitable balance of community appeal rights against bad decisions, and maintain open rights to enforce the law? Or will the pendulum swing further towards developer appeal rights? We look at these questions, and conclude this blog series with five essential improvements needed for the 2013 planning reforms.

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.


Five big challenges for the Planning White Paper – Challenge #3


Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

3. Strategic Planning Principles – locking in an imbalanced approach?
EDO NSW supportsa comprehensive strategic planning framework set out in legislation.  The White Paper and Planning Bill set out 10 strategic planning principles to guide a cascading series of state, regional, subregional and local plans. Several principles deal with appropriate governance measures, including community participation, accessibility and evidence-based planning. Other principles have a clear economic focus.

Critically, none of these principles deal with improving or maintaining environmental outcomes, assessing cumulative impacts (of multiple projects and environmental pressures) or preparing for climate change. This is despite recommendations from the Government’s independent planning review panel to include these factors.  A recent Productivity Commission report also noted that ‘a range of instruments could be used to manage climate change risks in land-use planning.’ The Commission encourages a ‘risk management approach’ and ‘transparent and rigorous community consultation processes’ to get there. Despite the White Paper’s commitment to evidence-based planning, the Planning Bill remains silent on climate change and cumulative impact assessment.

Turning to the strategic plans themselves, the challenge for state and local governments will be to meaningfully engage communities on multiple levels, without overwhelming them. There is also a broader concern that, applying the principles above, the various Plans will prioritise economic targets without sufficient integration of social and environmental values. We address each level briefly below.

High level NSW Planning Policies will set critical standards on key issues that must be followed by lower-level strategic plans. However, they will not be subject to parliamentary or judicial oversight. Also, if these Policies do not adequately protect the environment and foster social outcomes, subsequent plans will be ‘locked in’ to growth-focused policies, rather than an integrated approach to ecologically sustainable development (ESD).

Similarly, we believe Regional Growth Plans should require balanced and ecologically sustainable development that promotes community wellbeing. The draft legislation gives authorities broad discretion on whether or not to incorporate environmental aims and targets, including native vegetation targets, biodiversity strategies and pollution limits. With significant time having been invested by agency resources and the community in developing environmental strategies and targets, we must ensure they are embedded in the planning system if we are serious about the idea of ‘evidence based, whole of government’ strategic planning.

Subregional Delivery Plans should build in urban sustainability, climate change responses, and a triple bottom line focus. Subregional Planning Boards should be required to exercise their functions to achieve ESD, as the new overarching planning objective.

Given the propopsed ‘line of sight’ through levels of strategic plans, the system needs to minimise the risk of top-down determinism in Local Plans – where local preferences could be shoe‑horned into pre-set State priorities. Also, the White Paper’s new approach to zoning (fewer, broader zones) and development guides requires further practical explanation and analysis. Any zoning system must ensure sensitive environmental and heritage areas are protected, particularly in translating existing protections under Local Environmental Plans.

Finally, communities may be sceptical of a strategic planning process that calls for upfront engagement and certainty on their part, while providing additional developer rights at the local level – to vary, ‘spot-rezone’ and appeal, or seek ‘strategic compatibility certificates’ to leapfrog the local planning phase. A more equitable approach would restore public trust.

On Thursday we turn from strategic planning to individual project assessment. How will the NSW Government achieve its bold vision for 80% of development approvals through code-based criteria, instead of giving the neighbours a say? Will the community and environment be at the centre or the periphery, and what safeguards will apply?

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

Five big challenges for the Planning White Paper – Challenge #2


Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

2. Community Participation Charter – inclusive but unenforceable?
The White Paper proposes to put public participation at the centre of planning – via a Community Participation Charter. The Charter concept is a welcome inclusion in the Bill, but firm details for this novel approach to public engagement have been left to future Community Participation Plans and guides. This may prove problematic in practice, given that consultation on 20-year regional plans has already started, and is moving rapidly, in areas like Sydney and the Lower Hunter.

What is principally concerning is that it may be impossible to enforce compliance with the Community Participation Charter. Part 2 of the draft Bill is devoted entirely to Community Participation, and it sounds encouraging – except that it’s undercut by a wide-ranging clause in Part 10 that reveals virtually all of it is ‘not mandatory’. This could mean that Community Participation Plans cannot be challenged if they don’t stack up to the Charter, even if they involve significant errors by decision makers.

A shift to upfront engagement certainly has its positives. But there is also a risk of overburdening the community – particularly when coming to grips with new approaches to strategic planning and development assessment (discussed in coming days), which radically alter the process of ‘having a say’. Motivating, upskilling and listening to a wide range of community members will require significant time, expertise and resources.

To ensure the legitimacy of this centrepiece of the reforms, the Community Participation Charter needs to be binding. The public need this assurance and accountability – that plan-makers will match the Charter’s intentions with actions. The Charter’s principles – and their implementation in community participation plans – should also ensure that people have the information, advice and input they need to plan the communities and environments they want to live in.

Wednesday’s post looks at Strategic Planning under the new system. Does the White Paper lay a path to resolving land-use conflicts and other 21st century challenges – growth, liveability and sustainability? Or does it risk locking-in an imbalanced approach upfront? 

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

Five big challenges for the Planning White Paper – Challenge #1


Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

The NSW planning reforms are a landmark opportunity for a 21st century planning system – and the new laws could be passed in a matter of months. Looking at the 33-year legacy of the current Environmental Planning and Assessment Act, it could be mid-century before the next opportunity to influence the planning framework rolls around. So it pays to think now about the sorts of towns, cities, environment and infrastructure we want over the next three decades and beyond.

With less than six weeks left for consultations on the NSW Planning White Paper and draft legislation, time is short for the community to help shape the scaffolding of the new planning system.  For further information, see the EDO NSW White Paper briefing note, and more, on our new Planning Reforms webpage.

1. Objectives – a weakened approach to ‘sustainable development’
For two decades, NSW environmental and planning laws have included the guiding principles of ecologically sustainable development (ESD). Most of these principles will be consigned to history if the bold vision of the White Paper becomes a reality. This would be a significant retrograde step for environmental and social considerations in NSW planning decisions – from plan-making, to environmental assessment, approvals and conditions.

The first object in the exposure draft Planning Bill 2013 (NSW) is to promote ‘economic growth and environmental and social well-being through sustainable development’. Under the Bill, ‘Sustainable development is achieved by the integration of economic, environmental and social considerations, having regard to present and future needs, in decision-making about planning and development.’

This new, narrow definition of ‘sustainable development’ only briefly refers to two ESD concepts – the integration principle (‘of economic, environmental and social considerations’), and intergenerational equity (expressed in the Bill as considering ‘present and future needs’). Three other fundamental ESD principles have fallen off the agenda.

The new Planning Bill abolishes all reference to the precautionary principle (to deal with risk and scientific uncertainty[1]), biodiversity and ecological integrity as a fundamental consideration, and improved valuation, pricing and incentive mechanisms (including the polluter pays principle). These principles have been enacted in over 50 NSW laws, and many more across Australia and overseas. Two of Australia’s most recent planning overhauls – in Queensland (2009) and the ACT (2007) put ESD principles front and centre.

Our concern is not the change of name (from ESD to ‘sustainable development’), but with it the loss of an important decision making framework. A 21st century planning system needs to prioritise and implement Ecologically Sustainable Development and its principles, not a watered-down concept of integrated decision-making. Our submission will be that the Planning Bill needs to be amended – to place ESD at the apex of the planning system, and to apply its principles when making planning and development decisions under the law.

Check out Tuesday’s post for our view on community participation as set out in the new planning system White Paper. Will it be inclusive, ground-breaking, or ultimately unenforceable?

*Nari Sahukar is a Policy & Law Reform Solicitor at EDO NSW.

[1] In brief, the precautionary principle is triggered if there is a risk of serious or irreversible harm to the environment, and there is scientific uncertainty as to whether that harm will occur. In such cases, the precautionary principle requires the developer or proponent to demonstrate its activities are sufficiently safe.

EPA requires BHP to stop polluting the George’s River


Nine months after Macarthur Bushwalkers filed its case against BHP seeking orders to stop alleged pollution of the Georges River in the Illawarra, the NSW Environment Protection Authority (EPA) has required BHP to implement a program of works to protect this valuable river system.

While the Court case has been stalled pending the EPA’s decision, the notice issued to BHP by the EPA just before Anzac Day is a great outcome for the community and the environment, in more ways than one. Not only has the EPA decided that BHP must stop polluting, but in the process, the EPA actively engaged with the public, seeking written submissions and meeting with community representatives face to face.

The litigation
EDO NSW filed the case against Endeavour Coal and Illawarra Coal Holdings, subsidiaries of BHP Billiton, on behalf of the Macarthur Bushwalking and Cycling Club (MBCC). Illawarra Coal owns and operates BHP’s underground coal mine West Cliff Colliery, near Appin, and Endeavour Coal holds the environment protection licence for the mine.

MBCC brought the litigation because the community was concerned that a range of chemical toxicants including arsenic, zinc, copper, aluminium and nickel were being discharged into the Georges River from the West Cliff Colliery via Brennans Creek at levels well above the Australian and New Zealand Environment Conservation Council (ANZECC) Guidelines for healthy river systems.

The Georges River is vitally important to the Botany Bay Catchment. Its headwaters are located 60km south-west of Sydney in the town of Appin, and the river flows past BHP’s West Cliff Colliery, north towards Liverpool, then east towards Sydney before discharging into Botany Bay.

MBCC alleged that pollution from BHP’s mine had been discharged into the Georges River via Brennans Creek for more than 10 years, since January 2002. MBCC argued that the pollution wasn’t authorised by BHP’s environment protection licence, and was therefore in breach of the Protection of the Environment Operations Act 1997 which prohibits the pollution of waters.

The EPA’s decision
Just ten days after the case was filed in Court, the EPA issued a media release advising that it was looking to place limits on BHP’s licence with respect to salt and metals being discharged into Brennans Creek. This was formalised in September 2012, when BHP applied to vary its licence seeking limits for a number of key pollutants alleged in this case including aluminium, nickel, zinc, copper, arsenic, lead and salinity. BHP’s licence variation application, if granted, would effectively authorise much of the pollution alleged in the Court case. This meant that MBCC’s case was put on hold while the EPA made its decision.

After nine months of consultations and negotiations with BHP and the community, on 24 April 2013 the EPA determined BHP’s application by issuing a licence variation notice which sets limits for a range of pollutants including those alleged in MBCC’s case. In other words, the notice authorises that pollution. Because of this, MBCC’s case may not be able to continue.

However, the EPA also took the important step of requiring BHP to stop polluting. Under its licence, BHP is now required to carry out a program of works to achieve 95% species protection in Brennans Creek and the Georges River by December 2016. The EPA has also required ongoing monitoring of ecological impacts during this period while the works are being constructed.

The EPA’s notice states that the requirement that BHP stop polluting is to ‘ensure that measures are taken to protect the environment from harm’, and ‘to protect or restore the environmental values’ of Brennans Creek and the Georges River affected by the discharge that has already occurred. This is in effect one of the key remedies that MBCC was seeking through the Court case – orders to stop the alleged pollution – and as such represents a win for the community.

Community participation in pollution licensing – a precedent
Aside from the environmental outcomes achieved, it is important to consider the way in which the EPA came to its decision in this case.

Traditionally, licensing decisions have been made between the regulator and the licensee, with little (if any) public involvement. However, in this case, the EPA consulted with the public on BHP’s application, accepting public submissions, and meeting with community representatives to hear their views and receive advice from independent experts.

The EPA’s decision to involve the public in this licensing process serves as a valuable precedent for other licensing decisions, particularly where there are real concerns about actual or potential environmental harm, as was the case here. In this case, submissions made to the EPA included independent expert reports containing the results of water monitoring, assessment of ecological impacts and feasible treatment options. This case demonstrates the public’s ability to constructively contribute to licensing processes, and should encourage the EPA to open up its doors to the community when major decisions are being made about how to deal with pollution.

*Elaine Johnson is a Solicitor at EDO NSW

Image: Woolwash by Ken Hall, Australian Photography Tours (copyright)
Woolwash by Ken Hall, Australian Photography Tours (copyright)

Court applies fresh approach to weighing of economic, social and environmental impacts


Last week Preston CJ, Chief Judge of the Land and Environment Court handed down a significant judgment on a coal mine extension project. Warkworth Mining Limited, a subsidiary of Rio Tinto, had been granted approval to expand its coal mining operations near the small village of Bulga. The Court’s decision to overturn this approval has attracted considerable attention and concern about its implications.

The case
The Warkworth mine had previously been expanded in 2003. As part of that expansion approval, Warkworth agreed to protect a significant local landform, Saddleback Ridge, which provides a buffer between Bulga village and the mine. Warkworth had also agreed to protect significant remnant vegetation including endangered ecological communities in perpetuity.

In 2009 Warkworth sought approval for a further extension. That extension, which was ultimately challenged by the Bulga Milbrodale Progress Association (the Association) in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited, would result in the closure and excavation of Wallaby Scrub Road, the clearing of approximately 766 ha of four types of endangered ecological communities protected under threatened species legislation, and the removal of Saddleback Ridge. This extension was approved by the Planning Assessment Commission under delegation from the Planning Minister in 2012. However, following the Association’s challenge, the Court overturned this approval, disapproving the extension due to its significant and adverse impacts on biological diversity, and the adverse noise, dust and social impacts on Bulga.

A polycentric problem
The Court has brought a fresh perspective to the fraught process for decision makers of assessing and determining a project application. The Court stated that the range of interests affected, and the complexity and interdependence of the issues means that decision-making involves a polycentric problem, or a complex network of relationships with interacting points of influence. The resolution of one issue will have repercussions on the other issues, and the other issues may change in nature and scope depending on how the first issue is resolved. This means that the decision maker must determine the relevant matters to be considered in deciding whether or not to approve the project, and also subjectively determine the weight to be given to each matter and balance those weighted matters.

Weighing economic considerations
The Court has analysed for the first time the economic modelling and evidence put forward in support of a large mine. The Court criticised elements of Warkworth’s modelling, in particular Warkworth’s attempt to put a value on non-market elements such as endangered ecological communities and social impacts. The Court stated that economic analysis, such as a cost benefit analysis, is of limited assistance to the decision making process here, which requires consideration and balancing of economic, environmental and social factors. Ultimately the Court found that the economic benefits of the mine were outweighed by the negative impacts on social and environmental factors.

Like-for-like required for biodiversity offsets
The Court has applied NSW government guidelines requiring biodiversity offsets to provide flora and fauna species that are ‘like-for-like’, in that the offset must protect the same species that are being impacted by the development. This is in contrast to the approach increasingly taken by government in accepting biodiversity offsets that do not require such a high standard of protection for threatened species.

Social impacts of open cut coal mines
The Court has for the first time recognised the detrimental social impacts of the noise and dust conditions routinely imposed by the Minister to mitigate the impacts of large mines, in particular conditions providing for the acquisition of properties in the ‘zone of affectation’ most impacted by noise and dust.

What does this mean for future decisions?
This case may prove to have profound implications for the assessment of major developments, and no doubt will be scrutinised closely by industry and lawyers alike. In particular, it is likely that the case will transform the approach taken to, and methodology underpinning, the economic assessment of major projects.

N.B. Warkworth has appealed the Court’s decision.

*Natasha Hammond-Deakin is a Senior Solicitor at EDO NSW

Image by Stephen Bell.
Warkworth by Stephen Bell

Fullerton Cove judgment highlights need for CSG law reform


Just before the Easter long weekend, the Land and Environment Court dismissed a case brought by residents against Dart Energy’s coal seam gas pilot project in Fullerton Cove near Newcastle. The Court lifted an injunction on drilling that had been in place since September last year, allowing Dart to proceed with drilling their wells. However, five days later, Dart announced that it would suspend its project due to proposed new controls for CSG at State and Federal levels, including the NSW Government’s recent restriction on CSG within 2km of residential areas, and the Commonwealth’s EPBC Act water trigger.

The case
The Fullerton Cove Residents Action Group (FCRAG) brought the case because they were concerned that the Department of Trade and Investment did not consider any groundwater assessment before granting approval for the project. The project site is located on a floodplain, and includes 12 months of continuous gas and water extraction from CSG wells drilled to depths of 800-900 metres.

FCRAG were also concerned that there had not been proper assessment of ecological impacts, given the site is next to the Hunter Estuary Reserve, an internationally listed wetland which is home to many migratory birds. They also argued that a full Environmental Impact Statement (EIS) was required, including mandatory public consultation, which had not been prepared for Dart’s project.

In September 2012, the Court granted an interim injunction against Dart Energy stopping it from drilling the gas wells until the full case was determined. It was the first injunction granted against a CSG company by the NSW Land and Environment Court.

The main case, decided on 28 March 2013, tested the rigour of the assessment process under Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for CSG pilot production.

What the Court said
The Court found that the requirement under Part 5 of the EPA Act for the Department to consider environmental effects of the CSG pilot project ‘to the fullest extent possible’ did not include consideration of a groundwater assessment. This was despite the fact that the pilot project included 12 months continuous gas and water extraction, with an option to extend to 2 years.

Justice Pepper found that the Department’s failure to obtain or consider any groundwater assessment before approving the pilot project under Part 5 of the EPA Act did not amount to legal error. In making this finding, her Honour took into account several factors, including that it was a pilot project only, and that the Department had knowledge of the geology of the area generally.

The Court also found that even though no ‘7-part test’ for threatened species and ecological communities was carried out, it was sufficient for the Department to have ‘general regard’ to the 7-part test for threatened species.

Finally, the Court found that this pilot project was not likely to have a significant effect on the environment and therefore no EIS was required.

What does this decision mean for other CSG projects?
Pilot production can have the same kinds of environmental effects as full-scale production, albeit on a smaller scale. The Court’s finding in this case highlights significant problems with leaving the assessment of those impacts up to Part 5 of the EPA Act for CSG pilot projects. This is particularly problematic because most CSG exploration (including pilot production) involving five or fewer wells is assessed under Part 5.

In this case, Dart gained approval for 12 months’ continuous gas and water extraction, with an option to extend up to two years. The Court’s finding that no groundwater assessment is required by Part 5 in such circumstances is significant. It raises serious questions about the effectiveness of the EPA Act in protecting groundwater resources when it comes to CSG pilot production.

The project site is next to the Hunter Estuary Reserve, home to many protected migratory birds, and contained identified endangered ecological communities. The Court’s further finding that it wasn’t necessary for 7-part tests to be carried out for those species and communities also highlights serious deficiencies in the Part 5 environmental assessment process for biodiversity.

The judgment confirms that Part 5 of the EPA Act is unable to properly deal with assessment of CSG pilot projects, particularly when it comes to groundwater. If CSG pilot production can be approved under Part 5 without a groundwater study, it is difficult to see how the community can have any confidence that groundwater impacts are being rigorously assessed, or indeed at all. It is important that the new planning system addresses these deficiencies.

*Elaine Johnson is a Solicitor at EDO NSW

Image: Tawny Sunrise by Su Walker


Some funding certainty for 2013-14, but challenges remain


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

The limits of adaptive management


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


Can community members afford access to justice?


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