CVEN3701 Environmental Frameworks, Law and Economics · VA 121, 1-6pm, Bates 8 Wed, 29 April Economics as a tools to manage environmental issues VA 121, 1-6pm, Cheung 9 Wed, 6 May

CVEN3701 – Semester 1, 2015 – Course Profile – 1

COURSE DETAILS

Units of Credit 6

Contact hours 5 hours per week

Class Wednesdays, 1:00 – 6:00 pm (lecture and workshop), Vallentine Annexe 121 (K-H22-121C)

Course Coordinator and Lecturer

Dr Tommy Wiedmann (TW) teaches environmental frameworks, email: [email protected], Room CE312

Additional Lecturers Dr Gerry Bates (GB) teaches environmental law, email: [email protected]

Amy Cheung (AC) teaches environmental economics, email: [email protected]

INFORMATION ABOUT THE COURSE

This course builds on the broad multidisciplinary introduction to sustainability provided in the ENGG1000 Engineering Design and Innovation projects, and the range of environmental material accounting, environmental risk assessment, and sustainability assessment tools introduced in CVEN1701 Environmental Principles and Systems. The course will introduce Environmental Impact Statements (EISs), Environmental Management Systems (EMSs) and corporate and regional environmental reporting, each of which uses the tools covered in CVEN1701. The course then goes on to cover environmental law and economics, which can be used to implement sustainable strategies for corporations and regions. The course provides background material for application in the following courses in Year 3 and 4:

CVEN3402 Transport engineering and environmental sustainability

CVEN3702 Solid wastes and contaminant transport

CVEN3502 Water and wastewater engineering

CVEN4701 Planning sustainable infrastructure

HANDBOOK DESCRIPTION

This course builds on the introduction to environmental management in CVEN1701 and provides details of methods for Environmental Impact Statements (EIS) methods and the ISO14001 Environmental Management System (EMS) framework. It then provides an introduction to engineers on environmental law in Australia and NSW, focusing on planning law, and pollution laws. Environmental economics methods to account for environmental impacts in monetary terms, and the use of market mechanisms to achieve preferred environmental outcomes is covered at a level suitable for engineers.

The URL of your course online handbook is:

http://www.handbook.unsw.edu.au/undergraduate/courses/2015/CVEN3701.html

CVEN3701 Environmental Frameworks, Law and Economics

Semester 1, 2015


OBJECTIVES

The aim of this course is to enable students to undertake the preparation of EISs, EMSs and environmental reports, and to be able to have sufficient understanding of environmental law and economics to be able to work with professionals in these areas in order to implement sustainable strategies at corporate and regional levels.

The objectives of the course are to:

know the standard formats for EISs, EMSs and environmental reports, and to be able to use environmental analytical tools to critically analyse these documents, and be able to manage their preparation.

acquaint you with the fundamental principles of Australian environmental law; and to explain how these principles are applied to important areas of environmental management and regulation relevant to you in your studies and future career. The course assumes that participants have little or no background in the law, and so the course also provides some basic instruction about important legal concepts and structures. Although NSW is the ‘default’ jurisdiction for this course, the concepts and principles that are discussed are referable to all jurisdictions throughout Australia.

introduce students in Engineering to the economic way of thinking about environmental issues. This section will begin with some elementary economic tools, and proceed to apply these tools to examine environmental issues. There is no attempt here to justify any particular economic method. If you like, it is a course in how to communicate with economists.

TEACHING STRATEGIES

Lectures will provide an explanation of procedures to follow to prepare EISs, EMSs and environmental reports, and to implement sustainability strategies in these documents by way of environmental law and economics. Examples will be given in these lectures. Students then need to learn these procedures by applying to real world problems that they have some familiarity with, by way of assignments.

The course will not be run in distance mode, however, the lectures will be recorded on posted on Moodle. The lecture recordings are not intended to be a substitute for class attendance but may be useful for students who can’t avoid missing a class, and for those who attend the class but want to rehear part of it to aid their understanding.

The approaches to learning are:

Lectures Find out what you must learn

Take notes on lecture slides provided to get a full set of reference notes for the course.

Learn developing environmental laws and economic tools for use in environmental problems; many of these are not well documented in reference books.

Participate in class discussions and work out example problems in class.

Ask questions on how the content of lectures applies to assignment questions.

Workshops Work actively in small ad hoc groups on problems set in class.

Be guided by demonstrators, discussion questions and additional reading.

Participate and attempt all problems and discuss solutions with other students.

Ask questions on how the content of lectures applies to assignment questions.


Private Study Review lecture material, reference books, and resources on UNSW Moodle.

Work in groups on class assignments.

Reflect on class problems and assignments.

Download and work through additional readings provided and prepare for lectures.

Join Moodle discussions of problems.

Keep up with notices and find out marks via Moodle

Assessments (quizzes, examinations, assignments, group discussions and presentations etc.)

Answer quiz questions in class.

Demonstrate your knowledge and skills in workshops and assignments.

Demonstrate ability to work effectively in a group by completing the group assignment.

Demonstrate higher understanding and problem solving on real world problems in hypothetical, but realistic problem settings in workshops.

Formative and summative assessment of knowledge and skills in single and group assignments. Students are encouraged to seek feedback from the lecturer and demonstrator(s) during preparation of assignments.

Exams are summative assessments on knowledge gained in the course, particularly as indicated by the ability to quickly undertake exercises set in the Workshop problems.

Do not copy sections from textbooks or websites, always use appropriate references for sourced material

For each hour of contact it is expected that you will put in at least 1.5 hours of private study!

EXPECTED LEARNING OUTCOMES

At the completion of the course, you will be able to:

Describe the typical structure and format of an EIS, EMS and environmental report.

Be able to use environmental analytical tools to develop an EIS, EMS and environmental report for a project, an organisation and a region.

Be familiar with the laws that apply to environmental impacts of projects in NSW and Australia, and be able to brief and collaborate with environmental lawyers in the preparation of EISs, EMSs and environmental reports.

Be able to describe environmental economic analytical methods, and be able to critique their application in EISs, EMSs and environmental reports. Be able to brief an environmental economist to work with you in a multidisciplinary team to prepare EISs, EMSs and environmental reports for a range of projects, corporations and regions.


COURSE PROGRAM S1 2015

Wk Date Topic of lectures and workshops Room, time, lecturer

Assignments due

1 Wed, 4 March

Course introduction & overview, Assignment 1 briefing, Review of environmental impact assessment methods and tools from CVEN1701, Sustainable Development Principles, Introduction to Environmental Impact Statements (EIS)

VA 121, 1-6pm, Wiedmann

2 Wed, 11 March

Environmental assessment of development; EIS; Major Projects; Commonwealth EIA; protection of biodiversity

VA 121, 1-6pm, Bates

3 Wed, 18 March

Preparation of Environmental Impact Statements (EIS), Assignment 1 workshop, Environmental Management Systems (EMS) 1


4 Wed, 25 March

Environmental Management Systems (EMS) 2, Environmental reports, Practice of EMS and environmental reporting


5 Wed, 1 April

Common law, legislation, state/federal responsibilities, property rights, Land and Environment Court of NSW


A1 due 5:00pm Tue, 31 March

EASTER BREAK, 6 to 10 April

6 Wed, 15 April

Pollution control, waste, contaminated sites, climate change, energy, water


7 Wed, 22 April

Civil, criminal and administrative remedies for breaches of environmental laws; merits appeals


8 Wed, 29 April

Economics as a tools to manage environmental issues

VA 121, 1-6pm, Cheung

9 Wed, 6 May

Economic instruments of pollution control VA 121, 1-6pm, Cheung

A2 due 5:00pm Tue, 5 May

10 Wed, 13 May

Global externalities and mitigation techniques VA 121, 1-6pm, Cheung

11 Wed, 20 May

Environmental policies

Cost Benefit Analysis 1

VA 121, 1-6pm, Cheung

12 Wed, 27 May

Cost Benefit Analysis 2 VA 121, 1-6pm, Cheung

13 A3 due 5:00pm Tue, 2 June

Examination period: 12 to 29 June 2015


ASSESSMENTS

Assignment Assignment Details Value Due Date

Assignment 1 Critique of an EIS 20% 5:00pm Tuesday 31 March 2015 (week 5)

Assignment 2 Environmental Law 30% 5:00pm Tuesday 5 May 2015 (week 9)

Assignment 3 Environmental Economics 20% 5:00pm Tuesday 2 June 2015 (week 13)

Exam Frameworks and economics components only

30% Exam period 12-29 June 2015

Students must submit their assignments as prescribed by each lecturer. This may involve electronic submission via Turnitin on Moodle or by hard copy in a box described by the lecturer. In some cases, for instance if the lecturer is involved in an overseas posting, emailed attachments may be accepted. This will only be the case if the lecturer allows this. Please ensure all the details on the Assignment cover sheet provided on UNSW Moodle are included in your assignment.

Penalties for late assignments apply. Each lecturer will specify submission procedures and penalties for late assignments at the beginning of their component.

All assignments will be marked on the basis of whether the student demonstrates an understanding of the material. The assignments are additionally assessed with respect to the depth of the analysis, the breadth of its consideration of the question at hand and the clarity of the way in which the answer is presented. The use of tables and diagrams is encouraged where appropriate. Please make sure you do not exceed the imposed word limits.

PLAGIARISM

Beware! An assignment that includes plagiarised material will receive a 0% Fail, and students who plagiarise may fail the course. Students who plagiarise are also liable to disciplinary action, including exclusion from enrolment.

Plagiarism is the use of another person’s work or ideas as if they were your own. When it is necessary or desirable to use other people’s material you should adequately acknowledge whose words or ideas they are and where you found them (giving the complete reference details, including page number(s)). The Learning Centre provides further information on what constitutes Plagiarism at:

http://www.lc.unsw.edu.au/onlib/plag.html

EXAM and FINAL ASSESSMENT

The exam will be a 2-hour closed-book exam (plus fifteen minutes reading time) during the normal exam period. You are allowed to bring in one A4 sheet of paper with hand or typewritten notes, formulae, diagrams on both sides. There will be three questions to be completed; one on environmental frameworks and two on economics. There will not be any law questions in the exam.

The questions will generally be similar to the exercises and questions discussed in workshops and lectures. There are no previous exam papers available.

The Exam date is set by Exams Branch, and is confirmed in about Week 10 of session. You can access


the time and date of the exam via your MyUNSW. Do not make arrangements that will prevent you from doing the exam in the Exam Period, or after the exam date is set in Week 10, on the day of the exam.

The final grade for this course will normally be based on the sum of the scores from each of the assessment tasks. The Final Examination is worth 30% of the Final Mark if class work is included and 100% if class work is not included. The class work is worth 70% of the Final Mark if included. A mark of at least 40% in the final examination is required before the class work is included in the final mark. The formal exam scripts will not be returned.

There will be workshop problems set and quick quizzes given in some workshops. You need to prepare for these prior to the workshop. They do not count directly to your final assessment mark, but are intended to give you formative assessment, and assist with preparation of the formal assignments and the end of session exam. Students who perform poorly in the quick quizzes and workshops are recommended to discuss progress with the lecturer during the semester.

The Course coordinator reserves the right to adjust the final scores by scaling if agreed to by the Head of School.

LECTURERS

Tommy Wiedmann is an Associate Professor and leader of the Sustainability Assessment Program in the School of Civil and Environmental Engineering at UNSW. He has long-standing expertise in integrated sustainability assessment and environmental footprint analysis. His main research question is how to achieve human wellbeing without increasing environmental impacts. Tommy develops and applies environmental input-output analysis as part of a holistic concept to life cycle assessment, industrial ecology and sustainable consumption and production research.

Professor Gerry Bates has been devising and teaching courses in environmental law for nearly 35 years. He is the author of Environmental Law in Australia, the standard text on the subject; and the founder and Editor in Chief of the Australian Environmental and Planning Law Journal. Dr Bates was formerly a ‘stagiaire’ or trainee of the European Union; and an independent green member of parliament in Tasmania for more than 9 years, returning to the law in 1996. He now works independently as a specialist in environmental law and policy. Professor Bates was a member of the Board of the NSW Environment Protection Authority for more than 12 years between 1998 -2010; and a Director of Kimbriki Environmental Enterprises, a regional waste recovery centre and landfill site on Sydney’s Northern Beaches from 2005-2010. In 1994 he was honoured with the National Environmental Law Association's special award for "Outstanding Contribution to Environmental Law". In 2006 he was nominated for a Vice-Chancellor’s Award for Excellence in Teaching at the Australian National University; and a Carrick Institute Citation for Outstanding Contributions to Student Learning. In 2015 he will be honoured by the Law Council of Australia, Planning and Environment Group, for his contribution to the field of environmental law.

Amy Cheung was an economist for the Office of Environment and Heritage, New South Wales. Her doctoral thesis research was focused on developing a framework in economic theory to analyse the problem of salinity in Australia, and the use of possible market based policies for its alleviation. Her other principal research interests include the economics of climate change, waste management and water trading.

DATES TO NOTE

Refer to MyUNSW for Important Dates available at:

https://student.unsw.edu.au/dates

ACADEMIC ADVICE

For information about:


Notes on assessments and plagiarism, School policy on Supplementary exams, Special Considerations, Solutions to Problems, Year Managers and Grievance Officer of Teaching and Learning Committee, and CEVSOC.

Refer to Academic Advice on the School website available at:

http://www.engineering.unsw.edu.au/civil-engineering/resources/academic-advice

DETAILS OF COURSE PROGRAM

Environmental frameworks component:

Course overview and briefing on frameworks assignment; a comprehensive review of environmental material accounting tools undertaken in CVEN1701; students who have not taken this first year elective will be offered additional assistance.

An outline of the required content and conventional methods for completing an EIS, with illustration from a case study EIS that will be used in the frameworks assignment.

An outline of ISO14001 EMS, and credibility issues associated with undertaking an EMS.

An outline of suggested contents of environmental reports for corporations and regions, with critical examination of case studies.

Environmental Law component:

Course Synopsis & Aims

The law part of this Unit is designed to introduce to you, key principles of environmental law and policy that may be of use to you in your future careers as environmental engineers.

The course assumes that participants have little or no background in the law, and so the course also provides some basic instruction about important legal concepts and structures. Although NSW is the ‘default’ jurisdiction for this course, the concepts and principles that are discussed are referable to all jurisdictions throughout Australia. �

The content of the course concentrates upon those aspects of environmental law that you are most likely to come across in day to day practice as an engineer; requirements for gaining development consent; environmental assessment of projects and activities; pollution control, contaminated sites and waste; enforcement of environmental laws. But first we have to appreciate the nature of the Australian legal system and how it works.

> See Appendix for a detailed course outline of the law component and the law assignment!

Environmental economics component:

Economics and the environment – applying basic economic tools to environmental management

An economic view on “sustainable development”; Externalities, optimal pollution, cost benefit analysis and environmental valuation

Economic instrument of pollution control - “Internalising externalities”

Application of Cost-Benefit Analysis into environmental policy decisions

Global externalities: ozone, climate change. Concept of carbon trading.


RESOURCES

Moodle Discussion forum

Discussion and intra-group coordination can be done via a Discussions/HELP forum topic in Moodle for this course. The email discussion lists available in previous years are no longer accessible by students.

Textbook

There is no required textbook. The following are recommendations:

Environmental Law:

The text recommended for this course is Bates, G Environment Law in Australia. (2013), 8th. Ed. LexisNexis. You can get regular updates to the content of this book on-line. Go to https://campus.lexisnexis.com.au select Register, and create an account.

Accessing the Law – www.austlii.edu.au

Environmental Economics:

Perman, R., Yue, M., McGilvray, J., and Common, M., 2003, Natural Resource and Environmental Economics, 3rd edition, Pearson Education Limited, Essex.

This is available from the open reserve section at the UNSW library (S 333.7/381).

Additional Readings, standards and guideline documents will be provided throughout the lecture series on UNSW Moodle with each lecture.

UNSW Moodle

A UNSW Moodle site has been established for the course, and it will be used to provide all information (lecture overheads, readings, exercises etc) for the course. There will not be any hard copy photocopies provided for the course. Assess this via the TELT Gateway at: http://telt.unsw.edu.au/.

UNSW Library

To obtain materials external students may request books from the UNSW Library by post and also obtain books and articles from non UNSW Library collections through interlibrary loan.

This is the preferred method for external students. http://info.library.unsw.edu.au/external/services/externals.html

First time users need to register on-line at http://libraryinfounsw.altarama.com/reft100.aspx?key=OffCampus

After initial registration, you simply make requests through the Library's Catalogue (LRD) by logging into Your Borrower Record and selecting the ILL Request tab.

The library pays the forward mailing charges for materials sent to you. Return costs must be paid by you. To ensure that the items are not damaged in transit a padded postage bag should be used.

Off campus access to online library resources For information on usernames/passwords and hardware and software requirements necessary to remotely access online library resources please see the web page: http://info.library.unsw.edu.au/web/using/require.html

Library online resources To learn how to use library resources to locate texts and journal articles please refer to the online tutorial ELISE (postgraduate) located on: http://pgelise.library.unsw.edu.au/

Subject Guides

Developed by discipline specialists these guides identify major print and electronic resources in specific subject areas. The Engineering guide is http://subjectguides.library.unsw.edu.au/content.php?pid=7632


To locate an electronic journal/article and databases via UNSW Library Sirius Please go to the Electronic Resources page: http://sirius.library.unsw.edu.au/ Click on Find e-Journals Then login (top right hand of screen) with your z1234567 student number and Unipass. This will allow you free access to many e-journals and articles.

Find out what databases are available in your subject area in Sirius by selecting Find Resources and then Category. For further help with databases see our helpsheets http://info.library.unsw.edu.au/skills/helpsheets.html For further information on how to use the library catalogue (LRD) to locate texts and journal articles please see the How to use library web page: http://info.library.unsw.edu.au/skills/howto/howto.html As the UNSW Library online environment is constantly changing, it is of benefit for students to use these online How To Use guides for the step by step mechanics. Students can then use these in their own time and/or in conjunction with the Library service in person or by phone 9385 2650 or via an online form http://info.library.unsw.edu.au/web/help/help.html

Referencing your work

Use the how to guide http://info.library.unsw.edu.au/skills/howto/referencing/lrefcr.html

Links to reference management software Endnote & web-based Refworks http://info.library.unsw.edu.au/skills/endnote.html

Local Academic Library Access

Users may join the University Libraries Australia (ULA) Reciprocal Borrowing Scheme, to borrow books from more geographically convenient local academic libraries where access is possible.

See http://info.library.unsw.edu.au/usd/services/off/reciprocalunsw.html

New Search Engine for scientific journals

SCIRUS is an Elsevier’s Science search engine covering over 26 million scientific journal articles. It searches over 167 million science-specific Web pages, enabling you to pinpoint scientific, scholarly, technical and medical data on the Web; find the latest reports, peer-reviewed articles and journals that other search engines miss. Among the other subject areas, SCIRUS covers Engineering, energy and technology and environmental sciences.

Access is via Sirius: http://www.scirus.com

Similar to the Google Scholar library links, we are pleased to announce that the ‘Library Partner links’ feature has been enabled in SCIRUS). It means that you can now link back to full-text journal content where UNSW Library has a subscription. Search results retrieved for journal items will now have a “Find it@UNSW” link if you set up UNSW Library as your default library in SCIRUS Preferences. This feature also works from off-campus.

Instructions for setting up the links:

Go to SCIRUS http://www.scirus.com

1. Click on “Search Preferences” 2. Next to “Library partner links” select the “enable” radio button 3. Click on the letter “U” under “Choose from Institutes” 4. Select “University of New South Wales” from the drop-down menu 5. Click on the “Save Preferences” button. You are automatically taken back to the search page.


6. Enter a search string e.g. “diabetes and children” 7. Next to the number of records found, click on “journal results” 8. The results list shows articles with “Find it@UNSW” as a hyperlink 9. Click on Find it@UNSW to open “SFX Services for this record” window

UNSW Library also has a ‘Library Partner links’ to Google Scholar: see http://www.library.unsw.edu.au/ubb5.45z/Forum2/HTML/000617.html

COURSE EVALUATION AND DEVELOPMENT

The School of Civil and Environmental Engineering evaluates each course each time it is run through (i) the UNSW Course and Teaching Evaluation and Improvement (CATEI) process, and (ii) Focus Group Meetings. As part of the CATEI process, your student evaluations on various aspects of the course are graded; the Course Coordinator prepares a summary report for the Head of School. Any problem areas are identified for remedial action, and ideas for making improvements to the course are noted for action the next time that the course is run. Focus Group Meetings are conducted by the four Year Managers (academic staff) for any students who wish to attend, in each year of the civil and/or environmental engineering programs. Student comments on each course are collected and disseminated to the Lecturers concerned, noting any points which can help improve the course.


APPENDIX – Detailed Course Outline of Environmental Law Component and Compulsory Law Assignment

Part A Fundamental Concepts in Law

This unit is designed to answer fundamental questions about the role of law in society and how it works. 1. Where does the law come from? 2. What does it mean when we say that Australia is a ‘common law’ legal system? 3. What’s the difference between legislation, acts of parliament and statutes? 4. What’s a ‘regulation’? 5. What is the status of policies, plans, codes and strategies? 6. Is Australia bound by international laws? 7. What’s the difference between treaties, conventions and protocols? 8. What’s the difference between parliament and government? 9. What do the courts do? 10. What is the ‘doctrine of the separation of powers’? 11. What’s the ‘Crown’? 12. How does the Land and Environment Court work? 13. What are the laws in NSW that protect the environment? 14. What’s the purpose of environmental legislation? 15. What is the relationship between state law and federal (Commonwealth) law? Answeringthesequestionstakesustothefollowingissuesfordiscussion:A.MattersofGovernance

Democraticgovernance,capitalismandthedoctrineoftheseparationofpowers Framingenvironmentalpolicy:social,scientificandlegalinfluences The influence of ‘social networking’ in influencing and challenging policies and decision‐

making:www.edonsw.org.au;www.getup.org.au;www.lockthegate.org.au

Therelationshipbetweenenvironmentallegislationandthecommonlaw Therelationshipbetweenenvironmentalpolicyandenvironmentallaw

B.TheLegislativePower

Parliament is the supreme law-maker. Legislation is paramount and may effectively overrule common law, amend and repeal any legislation, and reverse or limit the effect of any administrative decisions taken under any legislation; Seafish Tasmania Pelagic Pty Ltd v Burke (No.2) [2014] FCA 117 (amendment to EPBCA empowering the Minister to ban the use of a floating fish processing and freezer ship)

Thefunctionsandlegalstatusoflegislation,regulations,environmentalpolicies,guidelinesandcodesofpractice.Environmental Planning Instruments: EPAA 1979 (NSW) Pt.3 (mandatory policies,must becompliedwith)VanSonvForestryCommission(1995)86LGERA108(forestrycodeofpracticeaspirational)ByronVentilinkP/LvByronSC(2005)142LGERA215(heritageguidelinesmandatory)Environment East Gippsland Inc v VicForests [2009] VSC 386; Environment East Gippsland Inc v VicForests [2010] VSC 335 (mandatory under logging code of practice to apply precautionary principle)


C. The Executive Power

Decision-makers exercising powers under legislation (ministers, government and local government executive officers, courts and tribunals hearing ‘merits reviews’) invariably have to weigh in the balance conflicting views and objectives about any particular proposal. This is not a matter for the law unless the decision-maker has failed to reach standards of decision-making set by law (essentially that the decision-maker should take into account all relevant considerations and, on the evidence, reach a decision that is objectively reasonable in the circumstances); Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 (challenge to LEC decision by Chief Judge on merits appeal refusing consent for extensions to coal mine)

D. The Judicial Power Therolesofthejudiciary(toapplycommonlawandinterpretandapplylegislation) Judicialapproachtostatutoryinterpretation

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (at [47]) the High Court explained the process of statutory interpretation as follows: “ThisCourthasstatedonmanyoccasionsthatthetaskofstatutoryconstructionmustbeginwithaconsiderationofthetextitself(105).Historicalconsiderationsandextrinsicmaterialscannotbereliedontodisplacetheclearmeaningofthetext(106).Thelanguagewhichhasactuallybeenemployedinthetextoflegislationisthesurestguidetolegislativeintention(107).Themeaningofthetextmayrequireconsiderationofthecontext,whichincludesthegeneralpurposeandpolicyofaprovision(108),inparticularthemischief(109)itisseekingtoremedy”.Note:wherelegislationhasamultiplicityofpurposesegprinciplesofsustainabledevelopment,whichmayembracemanypotentiallyconflictingobjectives,thecourtwilltrytoconstruewheretheintendedbalancelies;MyEnvironmentIncvVicForests[2013]VSCA356

Aidstostatutoryinterpretation:(InterpretationAct1987(NSW)ss33,34 Courts would be expected to follow their own decisions and those of higher courts (the doctrine of

precedent). An intermediate appellate court (state court of appeal) is entitled to depart from its earlier authority when that authority is ‘plainly’ or ‘clearly’ wrong; see Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146

Judgesdonotmakepolicy:egIlicvCityofAdelaide[2010]SASC139(whatis‘heritage’)

E.SpecialistEnvironmentalCourtsandTribunals

JurisdictionoftheLandandEnvironmentCourtofNSWwww.lawlink.nsw.gov.au/lec Importanceofthedistinctionbetweenlegalchallengesandmeritsreview LegalprecedentandPlanningPrinciples ForacompletelistofplanningprinciplesdevelopedbytheLEC,andrelevantcase‐law,seehttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples

Note:Adecision‐makerhearingameritsappealcannotsimplyputasideandsubstituteastandardsetbyaplanninginstrumentforonethedecision‐makerconsidersmorereasonable.Thismayleadthedecision‐makertofailtocomplywithastatutoryobligationto‘consider’therelevantplanninginstrument;BotanyBayCityCouncilvPremierCustomsServicesP/L[2009]NSWCA226.


Part B The Common Law

A.TheProtectionofPrivatePropertyandEconomicInterests

Theimportanceofprivateproperty Actionsforinterferencewithprivateproperty(nuisance,trespass,negligence)

VanSonvForestryCommission(1995)86LGERA108StateofSAvSimionato [2005]SASC412(liability innegligence forplantingsof treesandshrubsthattookawaymoisturefromtheplaintiff’slandthatledtodamagetotheplaintiff’sproperty).ByronShireCouncilvVaughan[2009]NSWLEC88(possiblecreationofnuisanceactionsbyconstructingseawallstorepeltidalinundation)Gales Holdings Pty Limited v Tweed Shire Council [2011] NSWSC 1128; [2013] NSWCA 382 (nuisance causing creation of habitats to support protected frogs!!)

Actionsforpersonalinjuryandeconomicloss(negligence)ArmidaleCityCouncilvAlecFinlaysonP/L(1999)104LGERA9PuntorierovWaterAdministrationMinisterialCorp(1999)104LGERA419GrahamBarclayOystersP/LvRyan(2002)125LGERA1

CommonlawmaybemodifiedorremovedbylegislationTrees(DisputesBetweenNeighbours)Act2006(NSW);WaterManagementAct2000(NSW)ss.52,393(riparianrightstowater)

But unless and until legislation affects common law rights, those rights will continue tosurviveVanSonvForestryCommission(1995)86LGERA108

Part C: The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA)

TherelationshipbetweenStateandCommonwealth(federal)laws

Constitution of Australia ss 51 (law making powers of the Commonwealth), 109(Commonwealthlawprevailstotheextentofanyinconsistencywithstatelaws)

TheEPBCAandotherCommonwealthlegislation

Environmental legal Responsibilities of the Commonwealth are triggered by a ‘significant impact’ on a ‘Matter of National Environmental Significance’ (MNES)

Booth v Bosworth [2001] FCA 145 (the ‘barbecued bats’ case)

Minister for theEnvironmentandHeritage vQueenslandConservationCouncil (2004) 134 LGERA272GreentreevMinisterforEnvironmentandHeritage(2005)143LGERA1

Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 (penalty of $220,000 for unlawfully clearing habitat of an endangered cockatoo)

If the Minister considers an impact may be ‘significant’ an environmental assessment must be done and the action approved by the Federal Minister (see below).

Coalseamgas

Anew‘MatterofNationalEnvironmentalSignificance’hasrecentlybeenaddedtotheEPBCA.Acorporationmustnottakeanactionthatinvolvescoalseamgasorlargecoalmining


developmentwithoutCommonwealthapprovaliftheactionhas,willhave,orislikelytohaveasignificantimpactonawaterresource(withinthemeaningofWaterAct2007(Cth));(EPBCAss24Dand24E).BeforetheMinisterdecideswhetherornottoapprovethetakingoftheaction,theMinistermustobtaintheadviceoftheIndependentExpertScientificCommitteeonCoalSeamGasandLargeCoalMiningDevelopment(s131AB).

‘Coalseamgasdevelopment’and‘largecoalminingdevelopment’meansanyactivityinvolvingcoalseamgasextractionorcoalminingthathas,orislikelytohave,asignificantimpactonwaterresources(includinganyimpactsofassociatedsaltproductionand/orsalinity):

(a)initsownright;or

(b)whenconsideredwithotherdevelopments,whetherpast,presentorreasonablyforeseeabledevelopments(s528).

TheIndependentExpertCommitteehasbeencreated(ss505Cand505D)toadvisetheCommonwealthMinisteraboutwhethercoalseamgasdevelopmentsorlargecoalminingdevelopmentsinastateorterritoryarelikelytohaveasignificantimpactonwaterresources.

ANationalPartnershipAgreementonCoalSeamGasandLargeScaleCoalMiningDevelopmentbetweentheCommonwealthandNewSouthWales,Victoria,Queensland,SouthAustraliaandtheNorthernTerritorycommencedon14February2012.Toviewtheagreementgotohttp://www.federalfinancialrelations.gov.au.

EnvironmentalassessmentundertheEPBCA

EPBCACh.4

Assessmentandapprovalbilaterals;Ch.3

Choiceofprocessforassessment;EPBCAs.87

Note:ContentandqualityofEIAmaybechallengedunderprocessesforjudicialreviewand/ormeritsappeals(seebelow)

Part D: Environmental Assessment of Projects in NSW

We will look at environmental assessment through a particular project chosen by the class; for example a coal mine, wind farm or other relevant project.

1. Major Projects

‘Fast-tracking’ projects of major economic and environmental significance (state significant projects and infrastructure); EPAA Pt.4 Div 4.1 and Pt 5.1 (Director-General assesses environmental impacts; Minister is consent authority)

State Environmental Planning Policy (State and Regional Development) 2011

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

EPAA Regulation 2000 sch.2


Specific Requirements for Mining

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Resource Significance) 2013 (NSW)

This amendment applies to the consideration of development consents for mining. It states:

1. that in determining whether to grant consent to a proposed mining development, the significance of the resource is to be the consent authority’s principal consideration. Accordingly, the weight to be given by the consent authority to any other matter for consideration (including environmental impacts) is to be proportionate to the importance of that other matter in comparison with the significance of the resource.

2. The amendment also introduces development standards for various environmental impacts, such as noise, air emissions and aquifer interference, relating to mining that, if complied with, prevents the consent authority from requiring more onerous standards for those matters; although this does not prevent the consent authority granting consent even though any such standard is not complied with.

3. In determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director- General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.

It remains to be seen whether this amendment will have any practical affect on the consideration of mining development, particularly by the Planning Assessment Commission (PAC), and, where merits appeals are not taken away by a referral to the PAC for a public hearing, the Land and Environment Court.

Mining and Agricultural Land: Gateway Process for Strategic Agricultural Land

Amendments to the Environmental Planning and Assessment Regulation 2000 (NSW) have been introduced to establish a gateway process for mining and petroleum development on strategic agricultural lands. This Regulation must be read in conjunction with State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2007, Part 4AA (the Mining SEPP) and Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2013 (NSW) (see below).

Strategic agricultural land comprises:

biophysical strategic agricultural land – land which has the best quality soil and water resources and is capable of sustaining high levels of productivity

critical industry cluster land – a concentration of significant agricultural industries potentially impacted by coal seam gas or mining development (see Mining SEPP reg 3). These areas can be identified by reference to land maps. For further information on the gateway process and strategic agricultural land see http://www.planning.nsw.gov.au/gateway-assessment-and- site-verification. Environmental Planning and Assessment Regulation 2000 Clause 50A now requires that a development application for consent to mining or petroleum development on strategic agricultural land must be accompanied by: (a) a gateway certificate; or (b) a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.

Site verification certificates are issued by the Director- General of Planning under regs 17C–17E of the Mining SEPP. Applications for gateway certificates (regs 17F– 17M must be made to the Gateway Panel (regs 17N–17U).


A Gateway assessment is an independent scientific assessment of the impact of new State significant mining and coal seam gas proposals on strategic agricultural land and its associated water resources. This assessment must be completed before an applicant can submit an application for development consent. The Panel will issue a certificate outlining its findings and making recommendations about the proposal.

Before determining an application for development consent that is accompanied by a Gateway certificate, the consent authority must consider the recommendations set out in the Gateway certificate, as well as a number of other prescribed matters, including impacts on water resources, and other advice provided by the Gateway Panel and Minister for Primary Industries (Mining SEPP reg 17B).

Environmental Planning and Assessment Amendment (Gateway Process for Strategic Agricultural Land) Regulation 2013 (NSW):

1. requires development applications (or applications for modification of consent) relating to certain mining or petroleum development on specified strategic agricultural land to be accompanied by a Gateway certificate in respect of the proposed development (or, in certain cases, a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land);

2. provides that, if aGateway certificate has been issued in relation to a proposed development, the Director-General of the Department of Planning and Infrastructure, in preparing environmental assessment requirements under Schedule 2 to the EP&A Regulation, must address any recommendations of the Gateway Panel set out in the certificate;

3. provides that, if a Gateway certificate has been issued in relation to a proposed development because of the expiry of the time limit set out in proposed Clause 17I (3) of the Mining SEPP, the Director-General, in preparing such environmental assessment requirements, must consult with the Gateway Panel and have regard to the need for the requirements to assess any key issues raised by that Panel;

4. provides that, if a Gateway certificate in respect of proposed development is issued after environmental assessment requirements for that proposed development have been notified, the Director- General must have regard to any recommendations of the Gateway Panel set out in the Gateway certificate and may modify the environmental assessment requirements; and

5. requires information regarding any relevant site verification certificate to be included in planning certificates issued by councils under s 149 of the EPAA.

New coal seam gas exploration and development is now prohibited in and within a 2 kilometre buffer around existing residential and village areas across NSW, and the North West and South West Growth Centres of Sydney (Mining SEPP reg 9A).

A National Partnership Agreement on Coal Seam Gas and Large Scale Coal Mining Development between the Commonwealth and New South Wales, Victoria, Queensland South Australia and the Northern Territory commenced on 14 February 2012. To view the agreement go to http://www.federalfinancialrelations.gov.au.

Impacts on water resources from coal seam gas and large coal mining developments are now a Matter of National Environmental Significance under the EPBCA.

2. Designated Development


Environmental assessment of applications for development under �EPAA Pt.4 (local council is consent authority) EPAA Regulation 2000 sch.1 and 3 �‘Designated development’ requires an environmental impact statement (EIS): EPAA Regulation 2000 sch.2; EPAA s 78A(8)(i)

3.Environmentalassessmentof‘activities’wheredevelopmentconsentnotrequired

GovernmentagenciestoconsiderenvironmentalimpactsbeforeissuingconsentsEPAAPt.5ss111,112‐112B;EPAARegulation2000reg228

4. Species impact statements

EPAA s 78A(8)(ii); Threatened Species Conservation Act 1995 (NSW) ss.109-113

5. Duties of decision-maker in evaluating applications for development

EPAA s 79C. Decision-maker must consider environmental impacts and the public interest. ‘Public interest’ includes principles of sustainable development �7.

6.CoastalPlanning

Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88

Note:theCoastalProtectionAct1979(NSW)hasrecentlybeenamendedasaresultoftheVaughnlitigationtointroduceinteraliathefollowingprovisions:

landownersinspecificlocationswillnowbeabletoplacesandorsandbagsonthebeachunderstrictconditionsinordertoreducetheimpactofcoastalerosionontheirproperties.Ifthebagscauseerosiontheyaretoberemoved.DraftMinister'sRequirementsfortheseworkshavebeenreleasedforconsultation.

consentauthoritiesassessingdevelopmentapplicationsforlongtermcoastalprotectionworkssuchasseawallsmustbesatisfiedthatappropriatearrangementsareinplacetorestorebeachesiftheyareerodedbytheworks.

councilsmaylevyacoastalprotectionservicechargeonlandwherethecurrentorpastlandownershavevoluntarilyconstructedcoastalprotectionworks.Thischargecoverscouncil'scostsofmaintainingtheworksandrestoringthebeachiftheworkscauseerosion.

ANSWCoastalPanelhasbeenestablishedtoprovideexpertadvicetotheMinisterandcouncilsoncoastalmanagementissues.ItisproposedthatthePanelwillalsobetheconsentauthorityforlongtermcoastalprotectionworkswherethecouncildoesnothaveacoastalzonemanagementplaninplace.

EnhancingstatutoryexemptionsfromliabilityforcouncilsandStateagencieswhentheircoastalmanagementactivitiesarecarriedoutingoodfaith.

Part E: Ecologically Sustainable Development (ESD)

Protection of the Environment Administration Act 1991 (NSW) s 6


EPAA 1979 (NSW) s.79C (decision-makers to consider the ‘public interest’ (includes ESD)�

Kennedy v NSW Minister for Planning [2010] NSWLEC 129

Precautionary principle

Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133

Precautionary approach enlivens ‘adaptive management’ (engineers may have to devise operational alternatives)

Ulan Coal Mines Inc v Minister for Planning [2008] NSWLEC 185 (conditions on mine requiring reductions in use of water in times of low flow)

Lawyers for Forests v Minister for Environment Heritage and the Arts [2009] FCA 114 ( conditions on the operation of a pulp mill inter alia requiring the mill to stop operating if maximum effluent standards were likely to be exceeded and response strategies were unlikely to prevent this occurring)

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 (“Adaptive management is a concept which is frequently invoked but less often implemented in practice. Adaptive management is not a “suck it and see”, trial and error approach to management, but it is an iterative approach involving explicit testing of the achievement of defined goals. Through feedback to the management process, the management procedures are changed in steps until monitoring shows that the desired outcome is obtained. The monitoring program has to be designed so that there is statistical confidence in the outcome. In adaptive management the goal to be achieved is set, so there is no uncertainty as to the outcome and conditions requiring adaptive management do not lack certainty, but rather they establish a regime which would permit changes, within defined parameters, to the way the outcome is achieved)”

Intergenerational equity

�Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59 (alternative sources of energy; greenhouse effect) �

Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116 (prime agricultural land)

�Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400 (aboriginal cultural heritage)

Improved valuation, pricing and incentive mechanisms as principles of policy setting; tradeable permits, biodiversity offsets and other market-based instruments �PEOA Ch.9 Pts 9.3, 9.3A, 9.3B�Threatened Species Conservation Act 1995 (NSW) (TSCA) �Pt.7A (biodiversity offsets)

Protection of biodiversity�

Largely through application of precautionary principle (see above)

Offsetsforimpactsonbiodiversity

An offset is basically any works or other action that makes reparation for losses of nativevegetation;or,more specifically,an agreement to carry out works or activities to conserve, enhance, maintain, monitor or rehabilitate an area of vegetation. There are basically three avenues through


whichoffsetsmaybenegotiated;bywayof aplanningagreementbetweenadeveloperand theconsent authority, reflected in conditions of consent (EPAA ss 80(6), 93F); by conditions ofdevelopment consent that require dedication of land or monetary payments where thedevelopmentmightincreasethedemandforpublicservicesoramenities(EPAAss80(6),94),orthrough conditions of approval for clearance of native vegetation where that does not requiredevelopmentconsent.Offsetsareintuitivelycontentious,forobviousreasons:first,whatiscertainisthatnativevegetationwillbedestroyedonthedevelopmentsite;second,althoughtheoffsetsitemust generally be maintained ‘in perpetuity’ for offset management, this may be inherentlyinsecure;third,wherethereisnocurrentproposaltodevelop,orthreatto,theoffsetsite,itmayinanycaseneverbeaffected,withorwithoutbeingdesignatedasanoffsetsite,inwhichcasetherewilleffectivelybelosswithoutrealgain;fourth,itisvirtuallyimpossibletooffsetbothqualitativeand quantitative proportional values fromone site to another, even if ratios of say 6:1, 10:1 orwhateverareappliedtotheoffset;thatis,thatforeveryhectareoflandcleared,sixortenhectaresofoffsetsmustbeprovided.Theoft‐heldsuspicionisthatoffsetsarereallyadeviceforpermittingdevelopmentthatshouldnotbeallowed(particularlywhereendangeredecologicalcommunitiesareinvolved);andthislegitimateconcernmustbeallayedbytherulesappliedtooffsettingandbydecision‐makers, including the specialist courts and tribunals which have, it must be said,generallyappliedrigorousstandardstooffsetschemes;seeBulgaMilbrodaleProgressAssociationIncvMinister [2013]NSWLEC48; (extensionofminerefusedbecauseof inadequateoffsetplanandsocialimpacts). Offset policies are now common in all jurisdictions, including the Commonwealth. The legal obligations on decision-makers to properly assess the merits of offset proposals under the EPBCA is not particularly onerous; see Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419 (offset conditions need not be satisfied prior to commencing approved forest clearing; and no contingency for what should happen if adequate offset areas could not be found)

F. Managing pollution and waste

1. Pollution

ProtectionoftheEnvironmentOperationsAct1997(NSW)

Prohibitionsonpollutingactivitiesandthelicensingregime Environmentprotectionnotices(seeUnit10) Voluntaryandcompulsoryaudits;pollutionreductionplans Criminalenforcement(seeUnit9)

2. Product stewardship and extended producer responsibility

ProductStewardshipAct2011(Cth)

E‐Waste

3. Landfills and alternative waste treatment facilities (AWTs)

Principlesofwastemanagement;avoid,reduce,re‐use,recycle,dispose QualitystandardsforapplicationofcompostderivedfromAWTstoland

4. Contaminated Sites

State Environmental Planning Policy 55 – Remediation of Land


EPAA ss 145A-C (exemptions from liability)

Contaminated Land Management Act 1997 (NSW)

Obligation to report

Powers of EPA to order investigation and clean-up

Choice of person to be held legally responsible for clean-up

Financial assurances for carrying out requirements of management orders

G Resolving Disputes in Environmental Law

1. Administrative remedies for regulators �

Environment protection and other notices and orders�PEOA 1997 (NSW) Ch.4 (clean-up, prevention, prohibition);�

Native Vegetation Act 2003 (NSW) ss 37, 38 (stop work and remedial)

2. Civil remedies for regulators �

Enforceable Undertakings �EPBCA ss.486DA, 486DB �

Undertakings given under these provisions include two NSW mining companies agreeing to pay $1.450,000 in an enforceable undertaking after damaging three endangered swamps; and $305,000 committed by a plantation timber company to repair damage done to a critically endangered grassland �PEOA s.253A �Several undertakings have been negotiated; including $100,000 to help improve land and water quality in the Hunter River catchment following releases of pollution from a coal mine; $120,000 for environmental rehabilitation for unauthorized emissions of sewage; and $100,000 for rehabilitation work along the Thredbo river following pollution caused by an escape of diesel oil.

3. Criminal prosecution �

Environment Protection Authority NSW Prosecution Guidelines, �http://www.environment.nsw.gov.au/resources/legislation/20120110EPAProsGuide.pdf �

These guidelines outline the attitude of the EPA to prosecuting offenders. They make the point that criminal prosecution is not automatic, and although various parties may be potentially liable, the EPA will be searching for those who are really ‘at fault’

• General principles of criminal liability: mens rea and actus reus

• Strict liability crime PEOA s.120�EPBCA s.12

• Wilful and negligent conduct PEOA s.116 �

EPA v Coggins [2003] NSWLEC 111 �

EPA v Warringah Golf Club Ltd (No.2) [2003] NSWLEC 222

• Vicarious liability of employers for actions of employees and agents;�

EPA v Rethmann Australia Environmental Services P/L [2003] NSWLEC 35


EPA v TransGrid [2003] NSWLEC 18

PEOA s.257 (occupiers of land responsible for emissions)

• Liability of corporations for directors, employees and agents �

EPBCA s 498B

PEOA ss.169, 257

• Liability of directors and managers PEOA s.169 �EPA v Perry [2004] NSWLEC 715 (easier to attribute culpability where sole director of corporation)

• Defence of honest and reasonable mistake of fact (not law) �

Ostrowski v Palmer (2004) HCA 30 �

EPA v Hardt (2006) 148 LGERA 61

• Defence of due diligence (never works!)

PEOA ss.119, 169 – 169C

Principles of Sentencing PEOA s.241;

Hardt v EPA [2007] NSWCCA 338 (intention and appreciation of offence relevant, even in strict liability and non-intentional proceedings, to determine level of seriousness of offence)

Resourceco P/L v Harvey (2007) 154 LGERA 37 (repeatedly ignoring orders and enhancing profitability without due regard to licence conditions demanded substantial penalty)

�Court orders for restoration, remediation and other orders PEOA s.245

Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 (award of $105,000 to Lake Macquarie City Council, for its Ecosystem Enhancement Operations Program, in lieu of a fine for an offence of unlawful pollution).

Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 (penalty of $60,000 to contribute towards a program of restoring the banks of the Castlereagh river)

Failure to carry out court orders: contempt of court�Booth v Yardley (2008) 160 LGERA 352 (‘barbecued bats’ case)

Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246 (fine 3x that imposed at sentencing would be appropriate)

Chief Executive Officer, Department of Environment and Conservation v SZULC (No.2) [2011] WASC 315 (15 months imprisonment)

4. Citizen enforcement

EPAA s 123 (and all other environmental legislation in NSW)


Note: this provision enables challenges to be brought not only against individuals or corporations carrying out unlawful activities, but against decision-makers, including ministers, who have breached procedural and substantive standards for making decisions. In general the legal standard for making a decision is that the decision-maker should take into account all relevant considerations and come to a conclusion that is objectively reasonable on the evidence.

Note the role of the Environmental Defenders Office (EDO) www.edo.org.au

Costs

In legal cases, costs normally ‘follow the event’ ie loser pays winner’s costs

Land and Environment Court Rules 2007 r.4.2 (The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest)

The LEC has adopted a three step approach to costs in public interest litigation: first, was the litigation truly brought in the public interest; second, were there any countervailing circumstances, such as disentitling conduct by the applicant or matters contrary to the public interest; third, is there ‘something more’ that would entitle a party to relief from the usual costs order?

Caroona Coal Action Group Inc v Coal Mines Australia P/L (No.3) [2010] NSWLEC 59 Snowy River Alliance Inc v Water Administration Ministerial Corporation [2011] NSWSC 652

Protective costs orders in public interest litigation

Uniform Civil Procedure Rules 2005 (NSW) rule 42.4; Land and Environment Court Rules 2007 (NSW) rule 4.2. (Acting in accordance with the dictates of justice is the primary consideration for exercising such a discretion; Civil Procedure Act 2005 (NSW) ss.58 and 60).

Blue Mountains Conservation Society Inc v Delta Electricity (No 2) [2009] NSWLEC 193�Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources [2009] NSWLEC 165

Interlocutory (Interim) Injunctions

Interim injunctions pending hearing of proceedings (to preserve the ‘status quo’) and requirements for giving undertakings for damages Note: In Save Our Figs Inc v General Manager of Newcastle City Council [2011] NSWLEC 207 the plaintiffs sought an interlocutory injunction to restrain the removal of iconic fig trees. The court said that in exercising its discretion in relation to the usual undertakings for damages, the three-step process adopted by the court in relation to orders for costs should be applied; first, can the litigation be characterised as having been brought in the public interest? Second, if so, is there ‘something more’ than the mere characterisation of the litigation as having been brought in the public interest? Third, are there any countervailing circumstances which speak against departure from the usual rule ? In this case application of this three step process resulted in the court’s discretion being awarded in favour of the applicant and the applicant was not required to give the usual undertakings as to damages.

Security for Costs SecurityforcostsandbalanceofconvenienceWilliamsvPardoe(2003)132LGERA54(grantofsecuritywouldstifleaction)SaveLittleBeachManlyForeshoreIncvManlyCouncil[2013]NSWLEC155IllawarraResidentsforResponsibleMiningIncvGujuratNRECokingCoalInc[2012]NSWLEC259


5. Merits appeals

A decision-maker hearing a merits appeal cannot simply put aside and substitute a standard set by a planning instrument for one the decision-maker considers more reasonable. This may lead the decision-maker to fail to comply with a statutory obligation to ‘consider’ the relevant planning instrument; Botany Bay City Council v Premier Customs Services P/L [2009] NSWCA 226.

Costs in merits appeals; parties usually pay their own costs unless there has been some ‘disentitling’ conduct.

In Meriton Apartments P/L v Council of the City of Sydney (No.2) [2010] NSWLEC 63 the Court said that so long as a party raises issues of merit that are at least ‘arguable’ then costs are unlikely to be awarded against an unsuccessful party.

Common References

You might see references to the following legal materials (all available in and through the UNSW Law Library): �EPLJ Environment and Planning Law Journal� LGERA Local Government and Environmental Reports of Australia HCA High Court of Australia� LEC Land and Environment Court of NSW� NSWCA New South Wales Court of Appeal� NSWCCA NSW Court of Criminal Appeal� FCA Federal Court of Australia� FCAFC Federal Court of Australia Full Court

Legislation

This course will refer to the following major pieces of legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW) and Regulation 2000 Protection of the Environment Operations Act 1997 (NSW) Native Vegetation Act 2003 (NSW) Threatened Species Conservation Act 1995 (NSW) Product Stewardship Act 2011 (Cth) National Parks and Wildlife Act 1974 (NSW) Contaminated Land Management Act 1997 (NSW) Accessing the Law

A useful ‘one stop shop’ for finding the law we are dealing with in this course is www.austlii.edu.au


Law Assignment

This counts 30% towards your final mark

Sustainable Enterprise Solutions (SES) is developing a proposal to create a recycling centre on vacant land in Northern Sydney. The Centre will process 100,000 tonnes per annum of food (putrescible) waste and around 10,000 tonnes of other waste material such as metals, used concrete and tiles and E-waste.

Prior to any environmental assessment being completed, SES engages a contractor to do some ‘preliminary earth-moving’ in order to assess engineering possibilities and solutions. This work causes significant amounts of silt to enter a nearby watercourse. Local people see dead fish floating downstream. The work also damages an area on the site that local people say is a Commonwealth and State listed threatened ecological community (some sort of rare gum trees); and subsequent investigation by you establishes that for a fact.

SES, now somewhat worried by the turn of events, seeks your advice about:

1. The liabilities of SES and its managers for what has already happened in relation to the pollution and threatened ecosystems (ie can they be prosecuted or sued for any breaches of environmental laws);

2. What SES needs to do to obtain development consent for this project (ie the process for obtaining consent including any environmental assessments it may have to carry out);

3. What rights members of the public have to complain about the project; and also whether they can take action in relation to the pollution and impacts on the threatened species that have already occurred.

Note: Use of relevant statutes and case-law will earn higher marks!

Documents

CVEN3701 Environmental Frameworks, Law and Economics · VA 121, 1-6pm, Bates 8 Wed, 29 April Economics as a tools to manage environmental issues VA 121, 1-6pm, Cheung 9 Wed, 6 May