No relevant cases this quarter.
New South Wales
Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59
On 12 February 2007, the Land and Environment Court approved the development of a wind farm at Taralga, about 140km south-west of Sydney. Chief Justice Preston held that the overall public benefits of the renewable energy development outweighed its adverse visual, noise and flora and fauna impacts. His Honour made it clear from the outset that the overall public interest prevailed in this case and commenced his judgment as follows:
The insertion of wind turbines into a non-industrial landscape is perceived by many as a radical change which confronts their present reality … To residents, such as members of [the applicant], the change is stark and negative. It would represent a blight and the confrontation is with their enjoyment of their rural setting.
To others, however, the change is positive. It would represent an opportunity to shift from societal dependence on high emission fossil fuels to renewable energy sources. For them, the confrontation is beneficial—being one much needed step in policy settings confronting carbon emissions and global warming.
Resolving this conundrum—the conflict between the geographically narrower concerns of the Guardians and the broader public good of increasing the supply of renewable energy—has not been easy. However, I have concluded that, on balance, the broader public good must prevail …
This finding suggests that development applications which aim to reduce greenhouse gases and slow climate change are likely to be viewed favourably, notwithstanding other adverse environmental and amenity impacts.
Garrett v Williams [2007] NSWLEC 56
On 20 February 2007, the Land and Environment Court sentenced the defendant to 400 hours of community service and ordered him to pay a total penalty of $330,000 in Garrett v Williams. The defendant, in his capacity as director of Serenity Cove Management Pty Ltd, was charged with picking plants that are part of an endangered ecological community on three separate occasions. The court found that the defendant committed the offences deliberately, for commercial gain and in the full knowledge that his actions were unlawful and that the vegetation was protected.
Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55
On 14 February 2007, the Land and Environment Court refused a development application for sand mining in Kurnell. The application was refused partly because of the proposal’s impact on Endangered Ecological Communities and partly due to its conflict with the aims and objectives of Sydney Regional Environmental Plan 17—Kurnell Peninsula (SREP).
The most important and relevant objective of the SREP was ‘to control and progressively phase out sand mining and to facilitate the rehabilitation of degraded lands’. Justice Talbot said that it was necessary to take this objective into account notwithstanding that sand mining is a permissible use in the relevant zone under the SREP.
It was also the minister’s longstanding policy to progressively phase out sand mining on the Kurnell Peninsula. Justice Talbot said that it was not the role of the court to elevate the minister’s policy to ‘a higher ranking in the matrix of matters that must be considered’ because the ‘court is not a policy maker in the true sense’. However, Talbot said that the court is obliged to have regard to that policy, because it is ‘a well developed, readily recognised and consistently applied policy that is compatible with the provisions of applicable statutory instruments’.
Environmental Protection Agency (EPA) secures $240,000 fine
Australian Hardwoods Limited (AHL) was fined $240,000 in the Brisbane Magistrates Court on 16 March for five counts of breaching an Environmental Management Program (EMP).
The EMP required AHL to take steps to improve the management of wastewater from its treatment processes, including the construction of a $7 million wastewater treatment plant, and to conduct a contaminated land assessment. These requirements were not met in the relevant time frame. The director of AHL was fined $8000 for failing to ensure that the treatment plant was installed.
Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33
The Queensland Conservation Council’s (QCC’s) objection to the expansion of Xstrata’s Newlands coal mine was defeated in the Land and Resources Tribunal on 15 February.
President Koppenol handed down a recommendation that Xstrata’s application for expansion approvals be granted, concluding that the QCC had failed to show ‘a demonstrated causal link between this mine’s GHG [greenhouse gas] emissions and any discernable harm—let alone any ‘serious environmental degradation’—caused by global warming and climate change’. The tribunal’s recommendation will now go to the minister for consideration and an ultimate decision on the grant of the approvals.
The QCC has appealed the decision in the Supreme Court.
EPA secures court orders against Binary Industries
The Brisbane Planning and Environment Court has issued orders requiring the cleanup and remediation of the Binary Industries site at Narangba, following a chemical fire in August 2005.
Interim orders were previously issued to the owners of the factory, Hamcor Pty Ltd and Terrence Armstrong, requiring them to increase the stormwater storage capacity of the Narangba site. The EPA applied for the interim orders following the owners’ failure to comply with a remediation notice and an environment protection order.
Objection to Iluka assessment rejected
The Busselton-Dunsborough Environment Centre (centre) appealed the decision of the EPA to assess the expansion of Iluka Resources Limited’s Yoganup sandmining operations at the level of a public environmental review (PER). The centre argued that the proposal should be assessed as a proposal unlikely to be environmentally acceptable. The West Australian Appeals Convenor determined that the PER level of assessment was appropriate in accordance with the EPA determination.
Notice issued to Esperance Port Authority
Following an investigation in early January 2007 into bird deaths in Esperance caused by lead carbonate, the Department of Environment and Conservation (DEC) has issued the Esperance Port Authority (Port Authority) with a notice under section 73A of the Environmental Protection Act 1986. According to the DEC media statement, the notice prevents the Port Authority from receiving and shipping lead carbonate.
In a related announcement, the DEC has monitored nickel loading at Esperance and has instructed the Port Authority to commence a sediment sampling program to establish the extent of potential contamination.
Environmental Field Notices issued to Resource Recovery Centre
The South Metropolitan Resource Recovery Centre (Recovery Centre) has been issued with three Environmental Field Notices by the DEC. The Recovery Centre had until the end of March 2007 to address its ‘odour issues’ or face further action by the DEC. Details of the possible further action are not currently available.
Hazelmere company allowed to resume operations
Following odour complaints and an investigation, the Talloman rendering company in Hazelmere was issued with a compliance notice by the DEC under the Environmental Protection Act 1986. The notice required the company to drain a waste water lagoon and to cease using the on-site waste water treatment facility.
The DEC has since allowed the plant to resume operation of its on-site waste water treatment facility in accordance with strict conditions.
No relevant cases this quarter.
No relevant cases this quarter.
SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156
In this case, the Victorian Civil and Administrative Tribunal (tribunal) allowed the Lyndhurst landfill facility to continue operating as a prescribed waste landfill, despite a condition of the facility’s planning permits which had prohibited the deposit of hazardous waste.
The facility operated under two planning permits which allowed the use and development of the land for a private rubbish tip, but prohibited the disposal of ‘hazardous waste.’ The Lyndhurst facility also operated pursuant to an Environment Protection Authority (EPA) licence, which had been amended over time to allow the deposit of materials that the tribunal found to be ‘hazardous wastes’. The planning permits had not been amended to reflect the changes in the EPA licence.
Following a declaration sought by the Greater Dandenong City Council that the Lyndhurst facility was in breach of its two planning permits, the facility’s owner and operator applied to the tribunal to have the planning permits amended and enable to facility to continue its current operations. The tribunal allowed this application and amended the planning permits.
In coming to its decision, the tribunal determined that as a general principal, conditions in a planning permit should not attempt to control the same matters controlled by EPA licences or works approvals. It was found that as the EPA possesses a level of expertise in pollution control and environment protection that is not possessed by municipal councils, the detailed regulation of the technical aspects of use or development allowed under a planning permit should generally be left to EPA approval.
Salmon company fined over wastewater discharge
A Tasmanian salmon company, Aquatas Pty Ltd, has been fined $22,000 in a Hobart Magistrates Court for the unlawful release of sludge and wastewater.
The waste was pumped from the treatment lagoon at company’s factory into a nearby creek that led into a bay south of Hobart where, according to Magistrate Helen Wood, there was significant potential for the discharge to harm ecosystems.
No relevant cases this quarter.
More information
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