Environmental case briefs January 2008

Commonwealth
New South Wales
Queensland
Western Australia
Northern Territory
South Australia
Australian Capital Territory
Victoria
Tasmania

Commonwealth

Japanese whaling in Australian Antarctic waters - Humane Society International Inc v Kyodo Senpaku Kaisha Ltd

The case was first brought in 2004 by Humane Society International, which launched a legal action against whaling firm Kyodo Senpaku Kaisha Ltd (Kyodo) seeking an injunction against harvesting in the Australian Whale Sanctuary (AWS).

The AWS—which Japan does not recognise—generally extends to 370 kilometres from the coast of Australia's Antarctic territory. The AWS forms a large part of the regular hunting grounds used by Japanese whalers. Kyodo owns ships currently hunting whales in Antarctic waters and effectively constitutes the Japanese whaling industry. Japan, like most countries, does not recognise Australia's territorial claim on Antarctica or its surrounding waters, and says the Australian Government has no authority to enforce its domestic laws on the high seas.

Federal Court Judge Jim Allsop ruled Kyodo had ‘killed, injured, taken and interfered with Antarctic minke whales and fin whales and injured, taken and interfered with humpback whales in the AWS in contravention of… the EPBC Act.’ He ordered that the firm ‘be restrained’ from future hunts, but conceded there was little chance his ruling could be enforced. ‘Unless the respondent's vessels enter Australia, thus exposing themselves to possible arrest or seizure, the applicant acknowledges that there is no practical mechanism by which orders of this court can be enforced,’ Allsop said.

New South Wales

Weston Aluminium Pty Ltd v Environment Protection Authority and Alcoa Australia Rolled Products

Alcoa Australia Rolled Products Pty Limited (Alcoa) acquired aluminium manufacture operations on land at Yennora in Sydney’s west.

Alcoa used this land to (among other things) process imported dross. Weston Aluminium Pty Limited (Weston) brought proceedings in the Land and Environment Court (LEC) alleging that the processing of imported dross required development consent that Alcoa did not have.

Weston brought two proceedings:
1. seeking declarations and an injunction restraining Alcoa from processing the imported dross on the land, and
2. to challenge a variation to Alcoa’s licence to process the imported dross.

With respect to the first proceeding, at first instance Lloyd J of the LEC decided that Weston was entitled to the relief it sought, however he did not make any final orders as Alcoa had at this stage applied under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) for authority to process imported dross on the land.

Alcoa’s application was not determined within the time period prescribed in the EP&A Act and this amounted to deemed refusal of the application. Alcoa challenged this deemed refusal in the LEC and shortly after this Weston brought the second proceedings, which were dismissed by Justice Pain in the LEC.

Weston appealed the dismissal of its second proceedings, and Alcoa appealed Justice Lloyd’s decision with respect to the first proceeding.

The Court of Appeal ordered that Weston’s appeal failed with respect to both proceedings.

Weston appealed to the High Court (court).

The question of whether declarations and an injunction should be ordered was remitted to the Court of Appeal.

In relation to the second proceeding brought by Weston, the court allowed this appeal and found in favour of Weston. Section 50(2) of the Protection of the Environment Operations Act 1997 provides that a licence relating to controlled development cannot be granted unless development consent has been granted for the controlled development. Alcoa submitted that the prohibition was against ‘granting’ a licence rather than ‘varying’ one, however this was rejected by the court. This prohibition was held to apply to both the granting and variation of a licence.

Walker v Minister for Planning

On 27 November 2007, the LEC declared void and of no effect the New South Wales Minister for Planning’s approval of a concept plan for a residential subdivision and retirement development on approximately 25 hectares at Sandon Point. The concept plan was approved under Part 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act).

There were three grounds of challenge to the approval, but only one ground succeeded. That ground was that the minister failed to take into account the principles of ecologically sustainable development (ESD) and the impact of the proposal upon the environment in several respects, including whether the flooding impacts of the project would be compounded by climate change.

Having regard to the legislative scheme, his Honour held that the principles of ESD were an implied mandatory relevant consideration.

Justice Biscoe considered that the climate change flood risk issue was ‘an aspect of the public interest that potentially has a direct bearing on the justice of the decision’.

Due to the minister's failure to consider the climate change issue, the LEC held the approval of the concept plan was void and of no effect.

Queensland

Greenhouse considerations in Queensland - QCC v Xstrata

The Queensland Court of Appeal (court) ruled in favour of the Queensland Conservation Council (QCC) on 12 October 2007. The appeal challenged a decision of the then Land and Resources Tribunal to approve an amendment to an environmental authority to allow Xstrata Coal Qld Pty Ltd to expand coal mining operations at its Newlands coal mine in central Queensland. In this case, Xstrata argued that if the amended environmental authority was granted, a condition should be imposed which required the greenhouse gas emissions associated with the mine to be offset. Subsequent to the hearing of the matter, the tribunal notified the parties of the existence of a critique of the Stern Review and of the report prepared by the Intergovernmental Panel on Climate Change Working Group (February 2007) and invited written submissions from the parties on the relevance of these documents. Xstrata filed a submission to the effect that it did not contend that greenhouse gas emissions contribute to global warming, which was effectively supported by the Queensland EPA, and the Queensland Conservation Council made a submission that the two documents should not be considered in light of the uncontroverted evidence about the effects of greenhouse gas emissions on climate change. The QCC followed this up with a subsequent submission about natural justice issues, and in particular expressed concern about the fact that the tribunal’s correspondence did not mention how the two documents might be relevant to a determination of the matter before it. The tribunal made an order to approve the amended environmental authority without the condition sought buy the QCC on the next day, apparently based at least in part on the two documents in question.

In a unanimous verdict, the court allowed the appeal on the grounds that the QCC had been denied natural justice. The court set aside the tribunal’s orders and remitted the matter to the Land Court, and also gave the QCC leave to amend the particulars of the conditions it sought to have imposed.

The court ruled that the tribunal had an obligation to give the parties an opportunity to present information or argument on particular issues that the tribunal considered important in the decision but that had not already been made obvious.

The scientific evidence linking anthropogenic carbon dioxide emissions and climate change was common ground between the parties at the appeal. The tribunal considered two particular scientific papers which, in the opinion of the tribunal, put in issue the fact of the existence of global warming and the anthropogenic causes thereof. The parties were notified that the tribunal considered the papers relevant to the appeal, but the way in which the tribunal considered them relevant was not sufficiently specified.

In response to the decision, amendments were made to the Mining and Other Legislation Amendment Bill 2007 before it was passed on 16 October 2007 to ensure that the expansion goes ahead.

John Edward Allen, the sole director of Noosa Washed Sand Pty Ltd, has been charged a number of times by the EPA in relation to his business operations at Lake Cooroibah.

Specifically, John Edward Allen has been charged with:

• three counts of providing false and misleading information (max penalty $124,875)
• one count of operating without a development approval (max penalty $124,875)
• one count of operating without a registration certificate (max penalty $30,000), and
• three counts of contravention of an environmental protection order (wilful contravention max penalty $150,000 or two years’ jail).

The matter was last mentioned in the Maroochydore Magistrates Court on 8 November 2007.

Western Australia

Environment protection notices issued to Esperance Port Authority

As discussed in previous editions of EQ, the Esperance Port Authority (Port Authority) has been charged under the Environmental Protection Act 1986 (EP Act) as a result of the lead contamination of Esperance Port. Subsequently, two Environmental Protection Notices (EPNs) have been issued by the Department of Environment and Conservation (DEC) to the Port Authority under s65C of the EP Act.

After finding that contamination was still present despite earlier clean up efforts, the first EPN required the Port Authority to carry out a thorough clean up of Esperance Port infrastructure. The EPN, amongst other things, directed the Port Authority to remove lead dust residues from conveyor systems, buildings and hardstand areas. The Port Authority was to obtain the DEC’s approval for its clean up plan and standard, and allow the DEC and Department of Health to audit the clean up and take their own validation samples to ensure the lead is satisfactorily removed. The final compliance report was to be presented to the DEC by 17 December 2007.

The second EPN required the Port Authority to improve its dust and air quality monitoring reporting and programs. The notice contained a range of detailed requirements including employing an approved air quality consultant to review Esperance Port’s historical air quality data and to prepare a comprehensive air quality management plan for Esperance Port and Esperance town site by 3 December 2007.

Nickel shipments from Esperance Port will be allowed to continue provided the EPNs have been complied with and are shown to be effective.

Northern Territory

No relevant cases this quarter

South Australia

No relevant cases this quarter.

Australian Capital Territory

No relevant cases this quarter.

Federal Court approves Port Phillip Bay dredging

The Federal Court (court) has ruled that the Federal Environment Minister Peter Garrett's approval of the Port Phillip Bay dredging project (project) was valid, although the decision has been appealed.

The Port of Melbourne Corporation plans to dredge 23 million cubic metres of sand, rock and toxic sediment from the bay's shipping channels to enable larger ships to dock.

Blue Wedges argued the $969 million project initially proposed dredging to a maximum depth of two metres, but the depth was now ‘unspecified’ and expected to reach more than five metres. The Blue Wedges Coalition launched a challenge in the Federal Court to try to overturn commonwealth approval for the project.

In his judgment, Justice Heerey said he accepted there were differences between the project as described in the first referral to the government and as proposed to be carried out. But he said the action of dredging was still the same. ‘The approval decision is lawful. The law does not require the process to be started all over again’ he said.

Justice Heerey did not make any orders to award costs. The court's decision to approve the project effectively means the dredging can start on 1 February 2008.

Sarina Sorrenti and Sam Pitruzzello v Banyule City Council

This was an application to review Banyule City Council’s decision to refuse to extend time for commencement of a planning permit. The planning permit expired over 18 months previously. The Tribunal declined to exercise its discretion under clause 62 of Schedule 1 of the VCAT Act 1998 to disregard the failure of a permit holder to make an application to extend their permit within three months of its expiry. The Tribunal held that those situations where the Tribunal has exercised this discretion tend to be cases where:

• the permit has expired relatively recently
• there has been a bona fide grace period
• there have been no changes in planning control or policy that would render what is permitted inappropriate in the current planning context
• the extension is supported by the responsible authority, and
• there are no changes to the permit.

Tasmania

Federal Court rules in favour of Gunns

In a ruling released on 22 November 2007, the Federal Court rejected a challenge made by the Tasmanian Wilderness Society (TWS) and Investors for the Future of Tasmania Inc (IFT) against the proposed pulp mill on the Tamar River.

The challenge was brought by TWS and IFT regarding the assessment process by which former Environment Minister, Malcolm Turnbull, approved the pulp mill. The following were among the ten grounds of appeal argued by TWS and IFT:

• the minister’s decision was invalid because either the referral was invalid, or alternatively, the previous decisions about the assessment process continued to apply
• the minister did not properly take account of the impact on nationally significant forests of the pulp mill’s sourcing of wood, and
• the minister’s decision on the assessment approach was not procedurally fair in that the public was not afforded a reasonable opportunity to comment on the proposal pulp mill.

The Federal Court rejected all grounds of appeal. A separate challenge to the Commonwealth’s approval of the project has been filed in the Federal Court by Lawyers for Forests, but is yet to be heard.

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