The Wilderness Society Inc. v Hon Malcolm Turnbull, Minister for the Environment and Water Resources & Another, No TAD 15/2007, and The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources & Another, No TAD 17/2007
Two groups have instigated judicial review proceedings in the Federal Court against the Federal Minister for Environment and Water Resources Malcolm Turnbull’s assessment of the Gunns Ltd pulp mill proposal in northern Tasmania.
The proceedings have been brought by the Wilderness Society and Investors for the Future of Tasmania, which is comprised of mainly tourism, food and wine operators from the Tamar Valley and challenge:
- the basis of the Minister’s decision that the project is a controlled action that requires his assessment and approval under the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act)
- of particular note is the exemption of ‘RFA forestry operators’ contained in sections 38 and 75 of the EPBC Act, and
- the Minister’s decision to require an assessment of the project by preliminary documentation, which was placed on public exhibition for 20 business days in May/June 2007.
The two cases were joined, and heard in Hobart from 4–10 July 2007. The judge is expected to deliver his decision in early August.
Coles Myer Limited v Randwick City Council [2007] NSWLEC 345
Freehills represented Coles Myer Limited (Coles) in these proceedings. The Land and Environment Court upheld Coles’ appeal against the decision of Randwick City Council (council) to refuse a development application for a change of use from a motor showroom and workshop to a retail liquor outlet, and alterations and additions to a property in Maroubra.
One of the key issues in the appeal was non-measurable amenity impacts. The council argued that the change of use, resulting in increased traffic movements, lighting, signage and retail activity, would have adverse amenity impacts on the surrounding residential area. It submitted that the concept of amenity is wide ranging and when assessing non-measurable impacts there is a need to consider the expert evidence carefully.
Coles submitted that the activity would be largely screened from view from neighbouring properties and as a result adverse impacts would be mitigated. Commissioner Watts concluded that any non-measurable amenity impacts would be maintained within acceptable limits such that the proposal should not be refused for this reason.
Goldberg v Waverley Council [2007] NSWLEC 259
In this case, the Land and Environment Court (court) held that section 39(2) of the Land and Environment Court Act 1979 empowers the Court to exercise the functions and discretions of a council under Part 5 of the Environmental Planning and Assessment Act 1979 (Act).
The application in question sought consent to subdivision under Part 4 of the Act and an approval under section 138 of the Roads Act 1993. The road works did not require development consent (triggering the operation of Part 5 of the Act). The council was both the consent authority and the roads authority and thus a determining authority under Part 5.
Justice Biscoe held that the functions and discretions of the person or body whose decision is the subject of the appeal (i.e. the council) within the meaning of section 39(2) includes the council’s functions and discretions as a roads authority under the Roads Act 1993 and determining authority under Part 5 of the Act.
CEAL Limited v Minister for Planning & Ors [2007] NSWLEC 302
In this case, the Land and Environment Court dismissed an appeal against the decision of the minister for Planning to refuse a development application for a sand and hard rock quarry.
In the course of her Honour’s discussion of the issues, Justice Jagot made some observations about the interaction of sections 79C and 80(4) and (5) of the Environmental Planning and Assessment Act 1979 (Act).
Justice Jagot observed that the provisions of section 80 ensure that the power of a consent authority is not exhausted by an initial determination to grant consent. If a consent authority grants consent to part of a development, it may subsequently grant a separate consent to the balance of the development without a fresh development application being made.
There is potential for conflict between the obligation in section 79C(1) and the capacity under sections 80 of the Act, particularly where the various parts of the development are interdependent. Section 79C(1) imposes an obligation on the consent authority to have regard to certain matters in the determination of a development application (for example, the provisions of an environmental planning instrument, the environmental, social and economic impacts of the development, and the public interest).
Justice Jagot stated that ‘it remains a matter for the consent authority (or court) to determine the weight to be given to relevant considerations, to weigh them one against the other, and to determine what should be done in the light of those considerations’.
Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350
In this case, Justice Pain reviewed the law relating to the abandonment of existing use rights. Under section 107(3) of the Environment and Planning Assessment Act 1979 (Act), ‘a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.’
The matters to be considered, as developed by case law, in determining whether an existing use has been abandoned may be summarised as follows:
- in the absence of actual use, an owner’s intention to carry on an existing use or to resume it at some time in the future does not necessarily operate to continue the existing use
- it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in the light of all those matters the cessation of the actual use proved by the facts is outweighed by an asserted subjective intention to continue the use
- where an existing use has not been continuous, there is an onus on the applicant to demonstrate that at all times they manifested the requisite intention to maintain the existing use, and
- steps taken to change an existing use, including the lodgement of a development application and pursuit of a court appeal in relation to that application, do not alone prove an abandonment of existing use rights.
Port Stephens Council v Robinson Anna Bay Sand Pty Ltd [2007] NSWLEC 240
The New South Wales Land and Environment Court has fined a sand mining company $100,000 for extracting about 97,200 tonnes of sand over more than seven months without development consent.
The company, which was in the course of entering voluntary liquidation, was using the extracted sand in Landcom’s Koala Estate development to rehabilitate a landfill.
Justice Lloyd noted sales of the sand probably generated about $292,000 and the company had avoided costs associated with making a development application ranging from $150,000 to $200,000. In addition, Justice Lloyd considered the fact that there had been some environmental harm resulting from the sand extraction.
Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225
The NSW Land and Environment Court has fined an international chemical manufacturing company $75,000 (plus $55,000 in prosecutor’s costs) for failing to transport dangerous goods in a safe manner. In particular, the company was found guilty for not properly segregating incompatible dangerous goods.
A truck carrying silver cyanide and hydrofluoric acid loaded by a sub-contractor to MacDermid Overseas Asia was involved in a road accident and chemical spill that closed the Hume Highway for two days in February 2003.
Justice Jagot concluded that the company had provided only ‘informal’ training to its employees. The subcontractor who loaded the truck was unsupervised and did not receive dangerous goods training, other than some general instructions, until after the accident. Shipping documentation for the load was incomplete. The court heard that if the two substances had mixed they could have generated a harmful and potentially fatal gas.
Environment Protection Authority v Colenden Pty Ltd [2007] NSWLEC 289
Colenden Pty Ltd has been convicted of polluting waters by the NSW Land and Environment Court and ordered pay a fine of $25,500 plus prosecutor’s costs of $18,000.
Colenden Pty Ltd operates a timber treatment plant near Coffs Harbour involving the use of copper chromium arsenate. A buffer tank containing a mixture of the chemical solution and rainwater ruptured, causing 1,000 litres of contaminated wastewater to leak from the tank and enter a dam.
In sentencing the company, Justice Jagot took into account the following:
- the maximum penalty of $250,000
- the defendant’s plea of guilty at the earliest opportunity
- that the chemical is a hazardous substance capable of causing acute and chronic health effects in humans and aquatic flora and fauna
- that the harm was limited in geographical extent
- that the harm was of relatively short duration, having been rectified two weeks after the event
- that practical measures to avoid the incidence were available and not taken by the company
- that the harm was reasonably foreseeable, even though heavy rainfall contributed to the load on the buffer tank leading to the dispersal of the contaminated wastewater as ‘heavy rainfall is itself a foreseeable circumstance’
- the moderate objective seriousness of the offence, and
- the defendant’s excellent environmental record.
Environment Protection Authority v Cargill Australia Limited [2007] NSWLEC 337
The Land and Environment Court has convicted Cargill Australia Ltd (company) for polluting waters and ordered it to pay a fine of $37,500 plus prosecutor’s costs of $22,450.
The company operates a livestock slaughtering and rendering plant in an industrial estate near Wagga Wagga. On 30 January 2006, a pipeline carrying wastewater from the plant’s operations cracked. About 20,000 litres of wastewater escaped from the cracked pipeline. The wastewater entered the council’s stormwater system and discharged into the top of a wetland system constructed by the council.
In determining the appropriate penalty, Justice Jagot took into account the fact that the company was taking practical measures to prevent the potential for harm to the environment by reason of water pollution. However, it was clear that other practical measures were available to prevent the harm, such as replacing the pipeline much earlier than it was, and providing interim containment measures for the unprotected section of the pipeline before it was replaced.
Thiess fined $50,000
Thiess has been fined $50,000 in the Mackay Magistrates’ Court for causing material environmental harm at its Burton mine in 2005. The harm was caused by the collapse of an embankment wall that spread about 400,000m3 of coal slimes over 96 hectares of land. Dry waterways and the company’s remediation actions served to minimise the damage to the area.
Swanbank composting company fined $50,000
QORS Pty Ltd has been fined $50,000 after the company pleaded guilty to contravening an environmental protection order and contravening a condition of a development approval. The charges, both of which related to the release by QORS Pty Ltd of odours from its business premises at Swanbank, were heard in the Ipswich Magistrates’ Court on 11 June.
Esperance contamination reports
The lead contamination problems at Esperance port were discussed in the last edition of
Environment Quarterly. The Department of Environment Conservation (DEC) has announced that soil testing has revealed that lead levels are well below health and environmental trigger levels. Despite this, on 5 May 2007 the DEC issued three environmental field notices to the Esperance Port Authority to upgrade its materials handling systems. Subsequently, a parliamentary inquiry has commenced into the causes of the contamination. The committee has raised concerns about the early timing of the DEC’s review of the Esperance Port Authority’s licence, as it may not allow the committee’s recommendations to be taken into account. The main contention is whether the Port Authority and Magellan had approval to ship and transport the particular form of lead carbonate. The DEC has since commissioned an independent review into Magellan’s compliance with its environmental obligations.
DEC prosecutes Kwinana company
The DEC will prosecute a resource recovery operator in Kwinana with carrying out work that caused a premise to become a prescribed premises without a works approval, contrary to sections 52C and 99Q of the
Environmental Protection Act 1986. The offence carries a maximum penalty of $100,000. The operator appeared before the Perth Magistrates Court on 22 June 2007. Details of the decision are not yet available.
Lansen v NT Minister for Mines and Energy
Justice Angel has found that the approval of the expansion of the McArthur River mine was invalid because the proper approval process was not followed by the Mines minister. The plaintiffs, who were registered native title claimants to the area affected by the project, argued that the minister acted in excess of his powers in approving the project or, in the alternative, that the approval was invalid because it was based on an invalid environmental assessment.
The main issue was whether the change from an underground mine to an open cut mine required an authorisation under section 35(1) of the Mining Management Act 2001 (Act), or whether it merely required acceptance of an amended Mining Management Plan submitted under section 41 of the Act.
Justice Angel highlighted that the mining activities specified in the application for the original authorisation were ‘underground lead/ zinc/ silver mine, processing plant and Bing Bong Port facility’. The authorisation that was granted was ‘to carry out mining activities’ on the subject mining site, however Justice Angel pointed to sections 35 and 36 of the Mining Management Act 2001 which require that the authorisation must be read together with, and be subject to, the application for the authorisation. Based on this conclusion, Justice Angel held that the authorisation did not authorise open cut mining operations and therefore the minister for Mines’ acceptance of the amended Mining Management Plan was invalid because it was not for mining activities that were covered by the authorisation.
No relevant cases this quarter.
No relevant cases this quarter.
Domsal v Moreland City Council [2007] VCAT
In this case the Victorian Civil and Administrative Tribunal (tribunal) considered the circumstances in which a council can require a comprehensive Environmental Site Assessment (ESA) prior to a planning permit being granted.
Domsal had applied to Moreland City Council (council) for a planning permit for the development of 22 dwellings, including two home offices. As part of a further information request, the council required a comprehensive ESA in addition to an undertaking by Domsal to pay the council’s costs of obtaining an independent review of that ESA. This was required, in part, so that the council could consider whether or not a Statement of Environmental Audit (EA) would be required as a condition of granting the permit, and if so, whether the EA could be delayed.
The tribunal acknowledged that ‘in considering applications for use of land known to have been used for industry… responsible authorities should require applicants to provide adequate information on the potential for contamination to have adverse effects on future land use.’ However, in this instance the tribunal found that a comprehensive ESA was unnecessary.
The council argued that it was entitled to require the ESA under a practice note issued by the Department of Sustainability and Environment (DSE) in 2005 titled ‘When is an environmental audit necessary for a planning permit application?’. The practice note states that, in addition to requirements for a certificate or statement of EA before a sensitive use can commence, ‘there may be other circumstances where the land is known to be contaminated and it would be appropriate for the level of contamination to be fully assessed as part of the application process.’ The council claimed that the facts of this case amounted to an example of an ‘other circumstance’ justifying the effort and expense of an ESA.
The tribunal found that it was ‘illogical, inconsistent and inaccurate’ to require a comprehensive ESA plus an undertaking to pay the costs of a review of the ESA in this case, as:
- a panel had previously decided that residential use was possible and reasonable despite the land’s industrial past
- the tribunal noted that requiring an ESA went beyond the requirements set down in the planning scheme (which, in this case, included an Environmental Audit Overlay that applied to the site)
- the council could not elevate the DSE Practice Note 2005 above the own planning scheme, and
- even if the DSE Practice Note was the relevant guideline, it could not be interpreted as potentially requiring an Environmental Site Assessment in addition to a Certificate or Statement of Environmental Audit.
In conclusion, the tribunal noted that it would have to be an extraordinary circumstance to require a comprehensive ESA.
Geelong Community for Good Life v Environment Protection Authority and Shell Refining (Australia) Pty Ltd [2007] VCAT 601
In this decision the Victorian Civil and Administrative Tribunal (tribunal) considered the extent of third party appeal rights under the Environment Protection Act 1970 (Act). This is the first time that the tribunal has had cause to examine the ability of third parties to appeal for a review of a licence amendment. The applicants applied to the tribunal for a review of the Environment Protection Authority’s (EPA) decision to amend Shell’s licence to emit waste.
Ordinarily, there is no right to appeal licence amendments under the Act. However, the applicants sought to rely on section 33B(1)(c) of the Act, which states that an interested party can appeal to the tribunal if the EPA amends a licence that relates to a matter in respect of which a works approval should have been obtained, but was not obtained, and the works have been completed or substantially completed.
The tribunal held that the applicants had no right to apply for a review of the decision. It found that the specific works relied on by the applicants, while substantially completed, were not matters which related to the licence amendment.
Metroll Vic Pty Ltd & Snowy Hydro Ltd v Wyndham CC [2007] VCAT 748
Metroll applied to the Victorian Civil and Administrative Tribunal (tribunal) for an interim enforcement order against Snowy Hydro, which was eventually granted. The tribunal held that an undertaking as to damages is not a necessary requirement when granting an interim enforcement order.
The applicant claimed that Snowy Hydro, which operates a power station on land near Metroll’s offices, was operating the power station in breach of its licence and that noise and vibrations from the power station were causing Metroll staff adverse health effects.
In considering whether to grant the interim enforcement order, the tribunal considered which path would carry the least injustice if it should turn out to be ‘wrong’. The tribunal held that the risk of on going health concerns for the affected individuals would be a greater injustice than the potential economic loss to Snowy Hydro if the power station had its operations restricted.
The tribunal considered whether Metroll was required to give an undertaking as to damages. Tribunal Deputy President Helen Gibson commented that it is only in exceptional circumstances that an undertaking as to damages will not be required. The tribunal found that in this case such exceptional circumstances did exist. Of relevance was the fact that the adverse effects were not being experienced by Metroll as a corporate entity but by individuals who work for Metroll and who had no option but to continue attending work each day if they wished to continue their employment. The tribunal held that their health or wellbeing should not be discounted because their employer was not prepared to give an undertaking as to damages.
Reading v Whittlesea CC [2007] VCAT 152
SPI Powernet Pty Ltd has been penalised for leasing a property to a man who used it to illegally dump approximately 27,000m3 of waste. SPI has been ordered to pay remediation costs estimated at between $750,000 and $1.25 million, as well as receiving a clean-up notice from the Environment Protection Authority and being made subject to a enforcement order by the Victorian Civil and Administrative Tribunal (tribunal).
The tribunal issued the orders despite SPI Powernet claiming to have been at all times fully committed to a voluntary clean-up of the site. Tribunal member Philip Martin expressed doubt over SPI’s claim and stated that he considered that a prudent landlord should have been periodically inspecting the land to monitor the tenant’s compliance with his lease obligations, due to the inherently higher risks associated with allowing a tenant to operate a materials recycling operation on the subject land.
The tenant responsible for the illegal dumping of waste over four years has been fined $45,000 by the Broadmeadows’ Magistrates Court.
Manuel v Greater Geelong City Council [2007] VCAT 474
This decision from the Victorian Civil and Administrative Tribunal (tribunal) clarified the calculation of the time limit for lodging an application for review of permit conditions under section 80 of the Planning and Environment Act 1987 (Act).
Referring to regulation 32 of the Planning and Environment Regulations 2005, the tribunal found that the 60 day time limit for lodging an application for review could be calculated from the day the permit was issued or the day notice of the decision was given, depending on the circumstances of the case. In the case of lodging an application for review of permit conditions, the tribunal held that the prescribed time can be calculated from the date the permit was granted notwithstanding that an earlier notice of decision has been issued.
Vitesnik v Macedon Ranges Shire Council [2007] VCAT 598
In this case, the Victorian Civil and Administrative Tribunal (tribunal) considered the calculation of the 21 day time limit for objectors to lodge an application for review of the decision to grant a permit under section 82 of the Planning and Environment Act 1987. According to section 82, the application must be made within 21 days after the objector is given notice of the decision. In this case, the tribunal considered whether notice is deemed to have been given when the notice is posted, or when it is delivered.
The tribunal held that the relevant date depends on who has the benefit of the time limit. In this case it was the objector who should have the benefit of the time limit, and hence the relevant date for calculating the time limit is from the date the notice was received. The tribunal concluded that receipt of notice refers to the time the notice is received at the address (deemed under the Interpretation of Legislation Act to be two business days after it is posted), and not the time that it is physically opened or collected by the recipient.
No relevant cases this quarter.
More information
For information regarding possible implications for your business, contact a member of the Environment & Planning team.