Brown v Forestry Tasmania
The Federal Court recently handed down its judgment in Brown v Forestry Tasmania (No 4) [2006] FCA 1729. The case focused on two key issues:
- The scope of section 38 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). This section, in effect, exempts most forestry operations from the referral, assessment and approval requirements of the EPBC Act provided they are undertaken in accordance with a regional forest agreement. Fundamental to this issue was whether the Tasmanian Regional Forest Agreement (RFA) was a ‘regional forest agreement’ within the terms of section 6(4) of the Regional Forests Agreement Act 2004 (Cth) (RFA Act) and section 38 of the EPBC Act.
- Even if section 38 does oust the application of the referral, assessment and approval requirements of the EPBC Act to forestry operations in Tasmania undertaken in accordance with the RFA, were Forestry Tasmania’s forestry operations in the Weilangta forest undertaken in accordance with the RFA?
Fundamental to both arguments was the court’s acceptance of evidence that Forestry Tasmania’s operations in the Wielangta forest would have a significant cumulative effect on the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and swift parrot. As well as being listed as endangered species under the EPBC Act, these species are also ‘priority species’ under the RFA.
Under clause 68 of the RFA, Tasmania agreed to protect priority species through the ‘comprehensive, adequate and representative’ reserve system (CAR reserve system) or by applying ‘relevant management prescriptions’. The management prescription of key relevance in this case was the process for authorising and complying with forest practice plans under the Forest Practices Act 1985 (Tas). Such plans must accord with the Forest Practices Code, a document prepared under this Act.
Senator Brown alleged that the RFA was not a regional forest agreement within the terms of section 6(4) of the Regional Forest Agreement Act 2002 (Cth) (RFA Act). If this argument was successful, then forestry operations in Tasmania would have been bound to comply with the referral, assessment and approval requirements of the EPBC Act, even if they complied with the RFA.
The court did not accept these arguments. Accordingly, Forestry Tasmania’s forestry operations could rely on the section 38 exemption provided they were undertaken in accordance with the RFA.
In relation to the second issue decided by the court, it accepted evidence that the CAR reserve system and the management prescriptions under the Forest Practices Act 1985 (Tas) were insufficient to satisfy Tasmania’s obligation under section 68 of the RFA to protect the three endangered species in question in the Wielangta forest. While the court made some quite scathing remarks about the independence of some of the expert evidence called by Forestry Tasmania, of interest also was the court’s interpretation of Tasmania’s obligation under clause 68 to ‘protect’ priority species.
The court stated that:
Protection is not delivered if one merely assists a species to survive. Protection is only effective if it not only helps a species to survive, but aids in its recovery to a level at which it may no longer be considered to be threatened.
This expansive interpretation was justified by reference to the stated purposes of the EPBC Act, and by the conventions which it purports to implement in compliance with Australia’s international obligations. The court referred to previous judgments of the court in Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24 and Booth v Bosworth (2001) 114 FCR 39, as well as two of the conventions to which Australia is a signatory.
The court also found that forestry operations in the Weilangta forest did not comply with clause 70 of the RFA. This clause required Recovery Plans and Threat Abatement Plans to be prepared and implemented ‘as a matter of priority’. The court found that there had never been a Recovery Plan for the beetle, and that the Recovery Plans for the wedge-tailed eagle and swift parrot ‘were not fully or even substantially implemented’.
Consequently, Forestry Tasmania’s past and future forestry operations in the Wielangta forest could not rely upon the section 38 exemption as they were not carried out in accordance with the RFA by reference to clause 68.
At the time of writing, no appeal had been lodged.
Gray v The Minister for Planning [2006] NSWLEC 720
The NSW Land and Environment Court held that an environmental assessment for a proposed coal development in the Hunter Valley was inadequate because it failed to consider the impact of coal burning emissions.
The action was brought by climate change activist Peter Gray who challenged the decision of the Director-General of the Department of Planning that the environmental assessment was adequate. Although the assessment disclosed the ‘direct’ greenhouse gas emissions from the coal mining, it did not disclose the greater amount of ‘indirect’ greenhouse gas emissions resulting from coal burning, which is the product of mining operations.
Justice Pain found that there was a ‘sufficiently proximate link’ between mining and burning coal so that the latter should have been included in the environmental assessment.
However, Justice Pain declined to order another assessment to be submitted, as the environmental assessment had referred to indirect emissions and an estimate of the indirect emissions had been included in other submissions.
Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339
The Court of Appeal on the 5 December 2006 upheld Justice Bignold’s decision that a development consent is not invalid merely because it is not accompanied by a Statement of Environmental Effects (SEE) in breach of the requirements of the Environmental Planning and Assessment Regulation 2000. The Court of Appeal held that the SEE was not an essential condition to the validity of the decision to grant consent.
Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587
This case involved a development application to demolish a residential building and erect a block of four units on a site in Vaucluse. Justice Pain reviewed the planning principles to be used in the assessment of development applications, and confirmed the judgment of Commissioner Roseth in Fodor Investments v Hornsby Shire Council (2005) 141 LGERA 14.
The four planning principles are as follows:
- How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?
- What is the relevance of the building in which the existing use takes place?
- What are the impacts on adjoining land?
- What is the internal amenity?
Despite this, Justice Pain cautioned that the Court of Appeal must not exercise a de facto application of standards in environmental planning instruments, as this would contravene section 108(3) of the Environmental Planning and Assessment Act 1979.
Planning and Environment Court rules against Queensland lychee farmer
The Queensland Planning and Environment Court has ordered a North Queensland lychee farmer not to operate an electric grid which he had used to prevent flying foxes from damaging fruit on his property. This follows on from the granting of an interim enforcement order under section 173E of the Nature Conservation Act 1992 (Act) to prevent the use of the grids.
Judge Rackemann granted an interim enforcement order in November 2006, providing that until an authority was obtained under the Act, the respondents must not electrocute flying foxes by the use of the grid system on their property and must disconnect the grid system from the electricity supply.
The final ruling, handed down by Justice Wilson SC on 30 November 2006, held that the respondent must dismantle the grids within three months of the ruling unless they were granted specific authorisation under section 88 of the Act to electrocute flying foxes in this manner.
QCC lodges objections to coal projects
The Queensland Conservation Council (QCC) has lodged objections to two large coal mining projects under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 on the grounds that the mines will cause adverse environmental impacts unless conditions are imposed requiring the offset of the greenhouse gas emissions associated with mining, transportation and use of the coal. The projects being challenged are Xstrata’s proposed expansion of the Newlands coal mine and QCoal’s proposed Sonoma coal mine.
The QCoal project was the subject of an earlier failed legal action by the Wildlife Preservation Society, which sought to challenge the mine under the EPBC Act on the grounds that the Federal Environment Minister had not considered the indirect impacts of greenhouse gases from burning coal sources from the mine when he should have done so. However, the new objections raised by the QCC in the present matter do not seek judicial review of a decision, and instead constitute a direct challenge of the environmental merits of the projects.
The QCC v Xstrata case will be heard in the Queensland Land and Resources Tribunal between 31 January and 2 February 2007.
Water Corporation v Chief Executive Officer of the Department of Environment [2006] WASC 256
The Water Corporation applied for a declaration that it did not require clearing permits under the Environmental Protection Act 1986 to clear native vegetation around its pipes, sewers, drains and other facilities.
Master Newnes commented that the issue was of some practical importance given the immense number of facilities of the Water Corporation and the necessity for the Water Corporation to conduct periodic re-clearing of vegetation to prevent blockages and facility damage.
This case considered whether the exemption under section 51C of the Environmental Protection Act 1986 and Schedule 6 which permits clearing of vegetation to give effect to a ‘requirement to clear under a written law’ includes clearing not expressly required under a statute but which is necessary to carry out other functions under the legislation.
The Water Corporation argued that the clearing or re-clearing that it carries out is necessary for the performance of its statutory duties and that it would hinder the Water Corporation in performing its statutory duties if it was required to obtain a clearing permit every time clearing is required. The Department of Environment argued that the written laws relied on by the Water Corporation did not impose any ‘requirement’ and therefore the exemption did not apply.
Master Newnes agreed with the Department of Environment and held that the phrase ‘requirement to clear under a written law’ referred to an obligation under a written law to clear, meaning that the clearing itself must be the obligation, rather than a need which arises because of another obligation under a written law.
Llian v Great Southern Vineyard Holdings Pty Ltd
Great Southern Vineyard Holdings Pty Ltd (Great Southern) lodged an application for a proposal to develop a vineyard at Witchcliffe. The proposal involved clearing of native vegetation and Great Southern lodged an application with the then Department of Environment for a clearing permit.
The Shire of Augusta Margaret River referred the proposal to the EPA and the EPA decided not to formally assess the proposal. Mr Llian and other local landholders appealed the EPA’s decision.
The appellants raised five main points of appeal. In making his determination of the appeals, the minister considered the proposal, the EPA report and statutory approval processes under the Environmental Protection Act 1986, the EPBC Act and planning regimes. The minister ultimately found that the EPA’s decision not to formally assess the proposal was correct and dismissed the appeals.
The finding is important as it demonstrates how statutory controls outside the Environmental Protection Act 1986 can be used to resist an assessment under Part 4 of the Environmental Protection Act 1986.
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None this quarter.
VCAT considers the operation of Development Contributions Plans
The case of Dennis Family Corporation v Casey City Council concerned a dispute over whether the Casey City Council’s obligation to provide infrastructure for which levies are collected under a development contributions plan is restricted to the amount of funds in the development contributions plan account. The Victorian Civil and Administrative Tribunal (VCAT) found that the Casey City Council must provide the infrastructure included in a development contribution plan irrespective of its cost or the amount of levies collected.
None this quarter.
None this quarter.
More information
For information regarding possible implications for your business, contact a member of the Environment & Planning team.