Case Notes - August 2013


Tarkine National Coalition Incorporated v Minister for Sustainability, Water, Population and Communities [2013] FCA 694 (17 July 2013)

The Federal Court overturned a controversial decision by the Commonwealth Minister for Sustainability, Water, Population and Communities to approve an iron ore mine in Tasmania's Tarkine region, which is home to one of the few remaining wild populations of Tasmanian Devils not affected by the presently incurable Devil Facial Tumour Disease (the disease).

The Court's decision was significant for two reasons:
  1. It suggests the obligation on the Minister to consider approved conservation advices, and potentially other similar documents under the EPBC Act, cannot be discharged other than by the Minister specifically considering the document itself.
  2. The Court’s reasoning in relation to the validity of the condition of the insurance population indicates that impacts on a species protected under the EPBC Act because it faces a risk of extinction "in the wild" can, to a degree, be validly mitigated through establishing non-wild insurance populations. (It is highly doubtful, however, that such measures could be used extensively without being inconsistent with the objectives of the EPBC Act.)
Maules Creek coalmine approval challenge

Approval of the Maules Creek coalmine is being challenged in the Federal Court by the Northern Inland Council for the Environment.

EDO NSW, which will be assisting with the case, said the challenge rested on the basis that the decision to approve the mine had been made too quickly, and so not all factors had been given due consideration. Of particular concern is the quality of the ''offsets'' Whitehaven had promised to set aside in return for being allowed to clear up to 1500 hectares of forest classed as ''critically endangered''.

For more detail, click here.

New South Wales

Hunters Hill Council v Gary Johnston [2013] NSWLEC 89

A Hunters Hill resident (the defendant) obtained development consent to build a house on the foreshore of the Parramatta River. A condition of the consent was that four Hoop Pine trees located on the boundary between the river and the proposed house be retained to screen the new development from the water.

The Hoop Pines were protected throughout construction of the defendant’s house, however, not long after construction was completed, the defendant engaged a contractor to remove the trees. A neighbour noticed that the trees were being cut down and immediately reported the tree lopping to Council.

The defendant was charged with an offence under the Environmental Planning and Assessment Act 1979 and fined $40,000.


Doherty v Murrindindi Shire Council (Red dot) [2013] VCAT 1185

The planning system in Victoria has needed to respond to the catastrophic Black Saturday bushfires in February 2009, in which 173 Victorians perished. Since then more rigorous planning controls have been introduced and applied by the Victorian Civil and Administrative Tribunal (VCAT).

This particular case involved a rural site in a ‘very high bushfire risk’ location which was badly affected by the 2009 fires. The owner had been allowed to build a smaller temporary building on the site soon after those fires. Having since rebuilt his main dwelling on the land, the owner wished to upgrade the temporary building to a more permanent “dependent person’s unit”. The Tribunal refused the proposal, relying on the advice of the Victorian Country Fire Authority that, because the native scrub had begun regrowing since 2009, the bushfire risks were now excessive.

This decision highlights the very challenging bushfire risk issues at play, particularly as bushfire risk assessments done soon after 2009 may become less reliable over time.