ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT – 2008/09 edo

The Environmental Defender’s Offi ce (NSW) is a community legal centre specialising in public interest environmental law. The EDO provides legal advice and representation in public interest environmental law matters. In addition to the provision of legal services, the Offi ce takes an active role in law reform and the formulation of policy, provides technical scientifi c advice to help the community understand environmental documents and carries out community programs on environmental law. The EDO has an offi ce based in Lismore to service the Northern Rivers area and the Sydney Offi ce covers the remainder of the State. The Offi ces are open Monday to Friday during business hours. This report was published on 14th October 2009.

ENVIRONMENTAL DEFENDER’S OFFICE NSW ANNUAL REPORT – 2008/09 This Annual Report has been printed on 100% recycled paper. From the Chair ...... 4 Director’s Report ...... 6 National EDO Network ...... 9 EDO NSW Introduction ...... 9 EDO Northern Rivers ...... 11 EDO: A Green Offi ce ...... 13

PART A – CORE FUNCTIONS OF THE EDO Litigation and Legal Advice ...... 14 Policy and Law Reform ...... 15 of Contents Table Scientifi c and Technical Advice ...... 17 Community Programs ...... 18 Media and Communications ...... 28

PART B – PRIORITY AREAS Climate Change ...... 33 Environmental Planning and Development ...... 40 Biodiversity Conservation ...... 47 Natural Resource Management ...... 57 Environmental Justice ...... 64 Corporate Social Responsibility and Governance ...... 72

PART C – REPORTING AND GOVERNANCE EDO Clients ...... 74 Acknowledgements ...... 75 EDO People ...... 78 Funding and Financial Report ...... 80 Independent Auditor’s Report ...... 82

EDO ANNUAL REPORT 2008-2009 3 New South Wales has now had matter of high public importance that statutory town-planning for over 63 those decisions are seen to be the years. I believe that, during all that product of unbiased consideration of time, there has never been more the factors that the decision-maker is dissatisfaction with it than at present. required by law to consider, and only Many factors contribute to this those factors. unhappiness. However, one important During the year under report EDO factor is the Minister’s power, was involved in two high profi le under Part 3A of the Environmental challenges to the legal validity of a Planning and Assessment Act 1979, Minister’s development approval, on (EP&A Act 1979) to call in, and the ground of bias or consideration From the Chair From personally determine, any substantial of irrelevant circumstances. The development application, bypassing complaint was not that the Minister the local council. This power is now had been infl uenced by a political frequently used. The power is made donation—there was no evidence more signifi cant by the circumstance of that—but, rather, that the Minister that decision-makers now usually took into account an agreement by possess discretion to override the the developer to dedicate to the development standards prescribed public some nearby non-residential in the relevant local environment land. One of these cases was heard plan. So people often fi nd themselves before 30 June 2009; the other was faced with a Ministerial approval for a then still pending. Subsequently, in the development that fails to comply with fi rst case, the Land and Environment the published requirements, against Court ruled in favour of the which they have no right of merits challengers to the Ministerial decision. review. Add to that combination the In the controversy that followed the constant media reports of developer Court’s decision, some people sought donations to political parties and it to defend the Minister’s decision on is no wonder that members of the the basis that the dedication resulted public are upset and cynical about the in a “good deal”, from the public’s whole process. point of view. The Court had not been Ministers are wont to assert their concerned to determine whether or decisions are unaffected by political not that was so; it was concerned only donations. That may be true; it would to determine whether the Minister, usually be impossible to prove as decision-maker, was biased or took otherwise. However, fact is one thing; into account irrelevant circumstances. perception another. Planning decisions Some people might see these cases always affect people other than the as lawyers’ obsession with process. applicant for consent, sometimes However, in a country governed by extremely seriously. It is, therefore, a the rule of law, public confi dence

4 EDO ANNUAL REPORT 2008-2009 [ THE HON. MURRAY WILCOX, QC] in decision-making depends on have been involved in a wide range of adherence to legal rules. Where there activities, here and in the Pacifi c, with is a question about that, lawyers and signifi cant success. the courts have a role to play in Next May will mark the 25th ascertaining the facts and enforcing anniversary of the date upon which those rules. EDO (NSW) commenced operations. Another important EDO case decided In conjunction with the Chairs of this year was Walker v Minister for the eight other EDOs, our Board Planning. This case was not about has decided to mark the occasion process. It concerned an important by holding a National Conference in question of substance: whether a Sydney on 28-29 May. The conference From the Chair From person determining an application will be preceded by a one-day for a development that would be training workshop for EDO staff from potentially affected by climate change around Australia. was bound to take that potential into The conference program is not yet consideration. Given the now widely settled but it will include discussion accepted reality of climate change, about issues likely to develop over and our increasing awareness of its the next 25 years, and responses potential devastating effects, it might to them: living under an emissions seem the question must be answered trading scheme; corporate governance affi rmatively. The primary judge and the environment; and the role thought so, but he was overruled of Australian EDOs in helping on appeal. The appeal court held Pacifi c countries. We are lining up the legislation did not require this an impressive range of speakers to factor to be considered. The result address these, and other, topics. The is obviously unsatisfactory and EDO guest speaker at the conference (NSW) has sought an amendment to dinner, on the evening of Friday the legislation. 28 May, will be the Chief Justice of These are but two of the myriad Australia, the Hon. Robert French. I issues with which the Offi ce has hope you will come. been busy this year. All the cases, and all the advices, are important to the clients, and often to the wider community. They are so treated, by a highly competent legal team. We are also fortunate in the quality of The Hon. Murray Wilcox, QC our other staff, the policy, education, Chair scientifi c and administrative offi cers. As this report demonstrates, under the able leadership of Jeff Smith, they

EDO ANNUAL REPORT 2008-2009 5 In a past Director’s report, I These are captured in the report described an exchange which I felt proper and a mere schematic outline exemplifi ed – at least from a litigation appears here. standpoint – what the EDO is about. Our policy and law reform program One farmer, seeking advice, asked remains a crucial area of engagement. a neighbour what he thought of the Policy work allows considerable Offi ce. “I hate them”, the neighbour scope for getting involved early said, “they fi ght like cornered cats”. and setting down sound decision- The EDO was duly instructed to act. making frameworks to protect the This year, via the ongoing evaluation environment, thus obviating the need of our services, we have another for more adversarial approaches. example which is equally instructive. Policy work this year has increasingly

Director’s Report Director’s In answer to a question about called upon, for example, the what aspect of an EDO advice the scientifi c and Indigenous expertise client liked, the answer was simple: within the Offi ce. Major and ongoing frankness. From my point of view, work this year, with many positive praise does not come much higher developments, has been in the than that. In all aspects of our work, areas of climate change (particularly it is important for the EDO to tell the Carbon Pollution Reduction it like it is and to provide frank and Scheme), biodiversity conservation, fearless advice. Such an approach NSW planning laws, Aboriginal is consistent with our professional cultural heritage and the Environment obligations and an ongoing reputation Protection and Biodiversity Conservation for being an honest broker. It allows Act (CTH) 1999 (EPBC Act 1999) us to fi lter unmeritorious claims, to (currently under review). properly inform the community and The Scientifi c Advisory Service clients and to focus our efforts where continues to grow from strength they are needed most. It also means to strength. It now comprises two that the presentation of our work in-house scientists, 120 experts, and to decision-makers – be it a letter, a a panel of eminent scientists who submission, or a legal challenge – is assist us strategically and prosaically. treated with a studied seriousness. More to the point, however, is This report details the tremendous the evident value that the Service work that has been achieved by adds to our work. It is increasingly the Offi ce in the last 12 months, enmeshed in our policy, community and the increasingly sophisticated programs, legal advice and litigation multi-disciplinary approach we bring work. The Scientifi c Advisory Service to complex issues. I cannot hope to was established over fi ve years ago, do justice to the scope and effi cacy and it is diffi cult to imagine how we of our achievements in a few words. functioned without it.

6 EDO ANNUAL REPORT 2008-2009 [ JEFF SMITH]

Our programs work is a broad conjunction with its advice work, church, including community legal and met with immediate success in a education, targeted programs number of matters. directed at specifi c sections of Of the victories before the Courts, the community, and international the landmark judgment on land capacity-building. An extensive swaps delivered in the Catherine range of workshops, seminars and Hill Bay case is worthy of special publications highlights not only our mention. The Court overturned two resolve to inform the community of Ministerial approvals, holding that developments in environmental law they were void on the grounds of but also an enhanced capacity to do a reasonable apprehension of bias this work, by having an Education and for taking into account irrelevant Offi cer in the Northern Rivers. The

considerations. Unfortunately, in Report Director’s Offi ce is also expanding its reach a long-running matter, the Court throughout NSW, with over 30,000 of Appeal reversed the Land and copies of the Rural Landholder’s Environment Court decision in Guide distributed this year. The Walker v Minister for Planning, one of International Program has successfully the fi rst cases to consider the impacts broadened its reach in the Pacifi c of climate change on a development, and, crucially, laid the foundations for and a special leave application to the ongoing engagement in the region. High Court narrowly failed. Even The International Program is primarily more diffi cult to swallow was the funded through the MacArthur use of special legislation to make Foundation but is also increasingly futile proceedings seeking to test the using cost-effective mechanisms, operationalisation of biocertifi cation such as volunteer placements, to in NSW. excellent effect. As the above can only begin to hint Our litigation team continued to at, the challenges of working at the hold decision-makers to account EDO are great, our adversaries throughout the year. A commitment formidable and the workfl ows to early engagement – letters and relentless. This report is testament advocacy on behalf of clients – to the professionalism, judgment and was backed up by litigation where dedication of staff in meeting the necessary. A signifi cant degree of substantial demands placed upon success was achieved through these them, as well as the growing infl uence strategies, while other test cases we have in the world in which we drew attention to defi ciencies in work. After nearly eight years at the legal framework. For the fi rst the EDO, the sterling efforts of staff time, the Northern Rivers Offi ce have never failed to inspire me and ran an active litigation program in this year is no exception. My sincere

EDO ANNUAL REPORT 2008-2009 7 [ JEFF SMITH]

thanks go to all staff for doing what monies. This has long hindered some they do and for making my job an of the smaller EDO offi ces around easy one. Australia, limiting the provision of a I also owe a debt of gratitude to the full set of services to clients where Board and, in particular, the Chair, alternative funds were not available. the Honourable Murray Wilcox QC, The Public Purpose Fund is our for the guidance and oversight they major funder, and it deserves special provide for our everyday operations. mention. Its support has enabled the The Board has continued to set a EDO to become a multi-disciplinary high standard of governance and legal offi ce, ably equipped to assist professionalism, and rightly expect the community to achieve positive this of the Offi ce itself. environmental outcomes through a

Director’s Report Director’s Thanks are also due, as ever, to the wide range of services. The PPF has vast array of people who continue to committed to provide an enhanced support our work in a variety of ways level of funding to the EDO over the - donors, barristers, experts, private next three years. fi rms and volunteers. The EDO Complementing these triennial would not be able to achieve the grants, the EDO has been the results we do without this assistance, fortunate benefi ciary of a number and we are deeply appreciative. of important, project specifi c grants. Last, but not least, I would like Our thanks go to the Community to thank our funders. The EDO Legal Centres Combined Group receives triennial grants from (NSW), the Environmental Trust (for the Commonwealth and State funding both the Rural Landholders governments, the MacArthur Guide and the Private Conservation Foundation (for international Program), Sydney City Council and capacity-building), the Environmental the Commonwealth Department of Trust (through the LECG program) Agriculture, Fisheries and Forestry. and the Public Purpose Fund. For a full exposition of these matters During a time of enormous global and more, I commend this Annual fi nancial uncertainty, these grants Report to you. provide the stability for the EDO to concentrate on what it is set up to do – empower the community to protect the environment through law. Importantly, after being in place since the mid-1990s, the new Federal Government lifted the litigation Jeff Smith restriction for Commonwealth Director

8 EDO ANNUAL REPORT 2008-2009 matter pertains to the environment National EDO in NSW and Australia. EDO Victoria has recently been granted additional Network funds to do law reform and policy work, and their work in this area has The Environmental Defender’s Offi ce signifi cantly increased. (NSW) is one of nine EDO offi ces located across Australia, collectively known as the Australian Network of EDO NSW EDOs (ANEDO). The different offi ces Introduction share information, resources and ideas and meet biannually as a network. Across Australia, around 50 staff work The EDO’s mission is to promote for the various EDOs, of whom over the public interest and improve 30 are solicitors. environmental outcomes through the Environmental issues in Australia informed use of the law. The EDO

increasingly have a national or has fi ve core areas of operation, National EDO Network cross-boundary focus. All EDOs are with staff working together in a committed to a more coordinated multi-disciplinary way to achieve approach to national environmental that mission. issues and matters of national This Report has been divided into environmental signifi cance which fall three main sections, parts A, B and C. within State and Territory boundaries. Throughout the year, ANEDO Part A of the report will outline the prepared both a Strategic Plan and a functions of the EDO and provide Business Plan to give greater focus to brief updates from each of these core these efforts. EDO NSW provided areas of operation – namely: signifi cant input into these processes. • litigation and legal advice ANEDO also welcomed the lifting • policy and law reform of the restriction on litigation for Commonwealth funding, which EDOs • scientifi c and technical advice have been advocating for many years. • community programs (community A key focus of ANEDO over the legal education, international and past year has, once again, been in Indigenous engagement) the area of policy and law reform, • media and communications with a particular emphasis on climate change and the EPBC Act 1999. The Part B of the Report will outline the EDO in NSW has taken the lead in work of the EDO within its identifi ed much of this policy work, where the ‘priority areas’, that is, environmental

EDO ANNUAL REPORT 2008-2009 9 issues that the EDO has identifi ed, in close collaboration with our stakeholders and clients, as requiring particular attention. These priority areas are: • Climate Change • Environmental Planning and Development • Biodiversity Conservation • Natural Resource Management • Environmental Justice • Corporate Social Responsibility and Governance This section of the Report will set out EDO NSW Introduction how each of the key functions of the EDO contributed to protecting the environment in these areas. Finally, Part C of this Report will cover the reporting and governance issues involved in the day-to-day running of the Offi ce. The staffi ng, funding and fi nancial aspects of the EDO are included in this section.

10 EDO ANNUAL REPORT 2008-2009 EDO Northern Rivers On the education front, the The Northern Rivers Offi ce is a Northern Rivers Offi ce temporarily branch offi ce of the EDO NSW that escaped its bounds with a successful operates from Lismore. Details of series of seminars on Human the work of the Northern Rivers Rights and the Environment which Offi ce have been incorporated in the canvassed the international scene. general work of the EDO throughout This was balanced by continuing this report. on-the-ground interaction with the community through stalls at a number The Northern Rivers Offi ce of community events including considerably expanded its litigation NAIDOC Day celebrations, the workload this year, appearing on PACTEC River Rally and the Big Scrub behalf of several environmental Environment Day. and community groups in the Administrative Decisions Tribunal, the The value of having an Education Land and Environment Court and the Offi cer as part of the Northern Rivers team was evident in the increased NSW Court of Appeal. A number EDO Northern Rivers of cases were under way or still capacity to organise an expanded awaiting outcomes at the end of the range of topical workshops and fi nancial year. seminars, often in direct response to requests from the local and/or regional Looking back on the work and community groups. In addition, the outcomes of the Northern Rivers Education Offi cer maintained a varied Offi ce in 2008-2009, a focal point and topical output in local and regional of the Offi ce has been biodiversity newspaper columns throughout the conservation and the protection of year, as well as speaking at a variety native vegetation. Four Court cases, of conferences around the area. The a great deal of advice work and a Education Program has oftentimes range of seminars and workshops engendered lively discussion emphasised that these topics remain and debate. at the forefront of community concerns throughout the Northern Through its on-the-ground presence Rivers area. In particular, the pressures in the region, EDO Northern Rivers on koala habitat have arisen in much is uniquely placed to operate as of the Offi ce’s work. a genuine community-based legal centre specialising in public interest Advice work was once again assisted environmental law. This has allowed by solicitors attending key meetings of for intensive engagement with the clients. In this way, the Offi ce was able local community, including visits to a to provide strategic legal advice at an local school, guest lectures at Southern early stage of several campaigns. Cross University, sponsoring a prize for

EDO ANNUAL REPORT 2008-2009 11 students of Environmental Law at the University, speaking at events such as the Northern Rivers Sustainable Living Expo and engaging in a Moot on the issues surrounding agriculture and Ecologically Sustainable Development at the University of New England. The continuing success of the Northern Rivers Offi ce is demonstrated by the fact that the Offi ce’s litigation/advice work and education work stretched throughout its service area from Port Macquarie to the Tweed and inland to New England. Helped by the work of the Education Offi cer, as well as regular EDO Northern Rivers appearances in the media, knowledge of the EDO and its services in the region continues to expand. The Northern Rivers Offi ce anticipates another busy year in 2009-2010, in its efforts to protect the unique environment of the area and meet the diverse legal service needs of its rural and regional client base. The Northern Rivers Offi ce would also like to record its thanks to all the experts, barristers and volunteers who have helped to provide on- ground services to the Northern Rivers community.

12 EDO ANNUAL REPORT 2008-2009 offsetting travel emissions from EDO: A Green 100% of offi ce travel using car, taxi, long distance trains or planes. Offi ce Offsets sourced will be accredited under the Voluntary Carbon The EDO NSW is committed to Standard, or Gold Standard to operating in an environmentally ensure additionality, permanency sustainable way. and effectiveness. This year, the EDO measured • Purchasing 100% GreenPower for its carbon footprint using the the Offi ce. methodology outlined in the EDO • Identifying areas where energy NSW Technical Factsheet: Measuring effi ciency can be improved and and reducing the greenhouse gas incorporating these into operations. footprint of a small offi ce. As part • Purchasing equipment and of this, the EDO developed a GHG

consumables with waste avoidance, ce EDO: Offi A Green calculator with associated procedures closing the recycling loop and for calculating GHG emissions of a reduction of environmental impacts small offi ce for use at the EDO and in mind. distribution to other interested CLCs. • Education of staff on how to reduce In calculating the carbon footprint of their ecological and carbon footprint the Offi ce, we included: in their homes and in the Offi ce. • All work-related travel (excluding Offsets were purchased for 2008-2009 travel to and from work) by EDO based on the GHG calculations. In this NSW employees, but not by respect, the EDO Scientifi c Offi cer met contractors. with Climate Friendly (EDO’s carbon • Emissions associated with offi ce offset provider) to discuss certifi cation paper use and disposal, and paper standards used for offsets purchased. used in EDO NSW publications. More broadly, the EDO has • Emissions associated with electricity reconfi gured its lighting system so use. that each area of the Sydney Offi ce • Emissions associated with waste operates on individual switches allowing disposal and recycling. for lights to be switched off in rooms that are not in use. Directions are The EDO also sought to manage posted on the website to assist people and reduce its ecological and carbon to access the Sydney Offi ce by public footprint by: transport or cycling. The Offi ce also • Encouraging the use of public prepared a Green Offi ce case study for transport by staff and clients and a publication by Climate Friendly.

EDO ANNUAL REPORT 2008-2009 13 PART A: CORE FUNCTIONS OF THE EDO

Appeal and resulted in a special leave Litigation and application to the High Court. Legal Advice The EDO provides free initial telephone advice and, if necessary, written advice on environmental law The EDO represents individuals and and policy. community organisations in public The EDO’s toll-free telephone advice interest litigation to protect the service, the Environmental Law Line environment. In 2008-2009, the EDO has been staffed by a duty solicitor litigated a variety of cases involving between 2:30 and 5:30 pm on issues of signifi cant public concern Tuesday, Wednesday and Thursday including climate change, biodiversity in the Sydney Offi ce and between issues, Aboriginal cultural heritage, 9 am and 5 pm Monday to Friday in planning and coastal development. the Northern Rivers Offi ce. Due to Over 20 EDO cases are reported on increased demand, the Sydney advice in this Report, being at various stages service also recently began operating of development: some having being on Monday afternoons. determined, others either awaiting In 2008-2009, EDO staff dealt with Litigation and Legal and Advice Litigation judgement or still to be heard. over 1000 telephone inquiries on the Climate change litigation has been a Environmental Law Line. Of these, key part of EDO casework and advice about 65% came from rural and work for some time. A recent paper regional New South Wales, which delivered by the Chief Judge of the is consistent with past years. The Land and Environment Court entitled subject-matter of these inquiries can Climate Change Litigation in the Land be varied, but many concern planning and Environment Court of New South and development, zoning, community Wales and Other Courts mentioned land, compliance and enforcement, 1 nine EDO NSW cases. The Walker Part 3A developments, freedom v Minister for Planning proceedings of information, Aboriginal cultural resulted in a signifi cant decision on heritage, pollution and contamination, Ecologically Sustainable Development endangered ecological communities and climate change in the Court of and species, private conservation,

14 EDO ANNUAL REPORT 2008-2009 biobanking, community rights, mining, water, forestry, and misleading and Policy and Law deceptive conduct. Reform Regarding casework by the EDO, 190 case fi les were opened during the reporting period and around 150 fi les The EDO plays a key role in were closed. More than 180 detailed infl uencing environmental policy and written advices, many with signifi cant law reform in both New South Wales scientifi c input, were prepared during and Commonwealth jurisdictions. the 2008-2009 reporting period. In 2008-2009, the EDO policy team drafted over 42 submissions 1 Available at http://www.lawlink.nsw.gov.au/lawlink/ lec/ll_lec.nsf/vwFiles/Paper_20Aug09_PrestonCJ_ in response to legislative reviews, NZ.pdf/$fi le/Paper_20Aug09_PrestonCJ_NZ.pdf government proposals and parliamentary inquiries. On the basis of our submissions, the EDO

is regularly requested to address Reform Law and Policy parliamentary inquiry hearings, public forums, and meet with government and environmental groups that lobby for environmental law reform. In 2008-2009 the number of submissions on climate change issues remained high, constituting approximately one third of submissions. 2008-2009 also saw the emergence of environmental justice as a key focus area, with a signifi cant increase to 25% of total submissions. The EDO policy team provides law reform advice to environment and community groups on current, proposed and potential environmental legislation. The EDO advises conservation groups and the community regarding the legal implications of Bills introduced into Parliament and whether amendments to a particular Bill should be sought. As part of this service, the EDO also

EDO ANNUAL REPORT 2008-2009 15 provides legal and policy advice on at such forums is expertise-based, potential amendments to members and is a crucial element of our key of the cross-bench and Government stakeholder and law reform role. In during formal briefi ng sessions and 2008-2009 the EDO held positions on meetings. In 2008-2009, this included the Biobanking Ministerial Reference advice on the Carbon Pollution Group, the Planning Implementation Reduction Scheme Bill, signifi cant Advisory Committee chaired by the amendments to the EP&A Act 1979 Minister, the Beverage Container and the federal renewable energy Deposit Group and the Contaminated target legislation. Land Management Committee. The EDO is regularly retained to Often the provision of policy advice is provide policy advice on a particular accompanied by the presentation of area of law or to develop law EDO workshops and appearances as reform proposals on a consultancy guest speakers at conferences (such basis to environment groups or the as the National Coastal Conference in Government. This complements August 2008). In this way policy work Policy and Law Reform Law and Policy proactive policy work on issues complements the EDO’s Education identifi ed by the EDO as requiring Program, and increases community law reform. Major advice projects in capacity to engage in policy and law 2008-2009 included advice to the reform processes. Department of Environment and Climate Change on how to strengthen the biocertifi cation process and a series of projects for the Murray Lower Darling Indigenous Nations on Indigenous participation in the management of natural resources. Proactive projects included an extensive report presented to both the NSW and Commonwealth Governments on how biodiversity management must adapt in light of climate change, the identifi cation of the elements of best practice planning laws and a project on Aboriginal cultural heritage reforms in NSW. In 2008-2009, EDO policy work also involved participation on various stakeholder panels. The input provided

16 EDO ANNUAL REPORT 2008-2009 2. Dr Iain MacGill, Senior Lecturer in Scientifi c and Energy Systems, University of NSW. Technical Advice 3. Dr Chloe Mason, Consultant in Urban Transport and Sustainability. 4. Professor Clive Hamilton, Professor In 2003, the EDO established a of Public Ethics, Centre for Applied Scientifi c Advisory Service with Philosophy and Public Ethics (joint the role of providing objective initiative of ANU, CSU, and the scientifi c and technical advice to University of Melbourne). the EDO and our clients on public interest environmental matters. In 5. Professor Chris Dickman, Professor addition to providing scientifi c and of Terrestrial Ecology, University technical advice to EDO solicitors of Sydney. and our clients, the last 12 months The scientifi c and technical advice has continued to see the Scientifi c work provided by the Scientifi c Advisory Service make a signifi cant Advisory Service can be categorised contribution to the EDO’s policy and as follows: law reform work. • pre-decision and casework The Scientifi c Advisory Service • compliance and monitoring work comprises: Pre-decision and Casework

1. Two in-house environmental Advice Technical c and Scientifi scientists. The Scientifi c Advisory Service provides advice on proposed 2. A Technical Advisory Panel, which developments or actions prior to an comprises academic experts who approval decision being made. This provide strategic advice to the mainly involves advice on the impacts EDO on scientifi c issues on a pro- of developments and the adequacy bono basis. of environmental impact assessments 3. An Expert Register, which and assisting clients in the preparation comprises over 125 scientifi c and of submissions to decision-makers. If technical experts in a range of the matter progresses to Court, the fi elds who assist the EDO from in-house scientists get involved in time to time on a pro bono basis. aspects of casework, such as briefi ng Members of the Technical Advisory and managing expert witnesses. Panel during the year were: Compliance and Monitoring 1. Professor Richard Kingsford, The Scientifi c Advisory Service Professor of Environmental Science, provides advice on approved University of NSW. developments or actions. This mainly involves advice on the compliance

EDO ANNUAL REPORT 2008-2009 17 of developments and actions with conditions of approval or Community regulatory requirements, as well as assisting clients in the preparation of Programs submissions to regulatory authorities. Throughout the year, the Scientifi c In 2008-2009 the EDO’s community Advisory Service has reviewed engagement programs were: environmental assessment documents • Community Legal Education for about 20 matters, undertaken program research and provided advice on specifi c technical issues for around • International program 30 matters, and prepared or assisted • Indigenous Engagement program with preparing about 20 EDO policy submissions. The in-house scientists • Accessibility program have also had signifi cant involvement Community Programs in two consultancies, prepared three 1. COMMUNITY LEGAL scientifi c fact sheets, given a number of EDUCATION presentations at various conferences and seminars, prepared one EDO The EDO’s Community Legal discussion paper and have led the Education Program (Education Green Offi ce program. Program) is a multi-faceted program which seeks to empower To assist with their work, the in-house the community to protect the scientists have also consulted and environment through law. It does this worked with around 40 experts, both by providing free legal information on on and outside the Expert Register, in a range of environmental law topics the past 12 months. and in a variety of formats. A focus of the Education Program is to help the community gain the knowledge and skills necessary to engage effectively in environmental decision-making. In 2008-2009, the EDO maintained an active Education Program with a primary focus being to complement the work of the Offi ce’s other functions, particularly policy and litigation. The Northern Rivers Offi ce runs a discrete Education Program in the region with the Sydney Offi ce

18 EDO ANNUAL REPORT 2008-2009 directing its programs to the law issue from a multidisciplinary remainder of the State. The work perspective. EDO NSW produces this of both Offi ces is combined in publication on behalf of the Australian this report. Network of Environmental Defender’s Offi ces (ANEDO). Workshops IMPACT! is available to subscribers only A total of 21 free rural and regional and work is underway to increase the workshops were held throughout subscriber list over the coming years. New South Wales, with over 400 people attending. Workshops covered • Rural Landholder’s Guide To a range of environmental law topics Environmental Law In NSW and were often presented at the The Rural Landholder’s Guide to request of community groups. Environmental Law in NSW was Seminars updated throughout the last fi nancial year and was launched in October Sixteen free topical seminars covering

2008. The production of the new Community Programs a range of issues were held in the guide was funded by a grant from the Sydney metro area and throughout NSW Environmental Trust which also the Northern Rivers region during funds complementary workshops. 2008-2009. Over 500 people Throughout the reporting period the attended EDO seminars throughout EDO has distributed approximately this time. EDO seminars focus on 30,000 free copies of the guide to new and emerging environmental law landholders throughout NSW. Plans issues and are presented by relevant are underway to update the guide experts. They provide an opportunity again and distribute a further 50,000 to examine a legal environmental copies over the coming years using issue from different perspectives and the remainder of the funds from the encourage discussion of new ideas for Environmental Trust. As the Glen law reform. Innes Natural Resources Advisory Publications Committee said: The EDO continues to expand its The Guide was popular with [the range of plain-language publications 120] participants, many of whom and update existing publications. commented that they found • IMPACT! the publication easy to read and understand, and that it answered The EDO’s national environmental law their questions regarding the journal IMPACT! entered its second complex and diverse array of year of publication in its new format. legislation now governing land The publication is released bi-annually management in New South Wales. and covers a topical environmental Glenrac staff fi nd the Guide to

EDO ANNUAL REPORT 2008-2009 19 be an excellent resource for • Scientifi c Fact Sheets new residents, particularly those A new science fact sheet on evidence who are taking to farming for the collecting was added to the website fi rst time. to complement the existing science • Caring For Country: A Guide To fact sheets. Environmental Law For Aboriginal • e-bulletin Communities The EDO’s free weekly e-bulletin This free publication remains a continues to be a popular resource popular resource for Aboriginal with a subscriber list of over communities, with over 1000 copies 1,500. The e-bulletin updates distributed during the last year. The subscribers on EDO news and EDO has continued to provide it events including media coverage, upon request and it is available online. developments in environmental • Campaigning And The Law In law and policy, opportunities to

Community Programs NSW: A Guide To Your Rights And participate in State and Federal Responsibilities. Government environmental decisions The EDO produced this resource in and community events with an February 2007. The publication is now environmental focus. The EDO has available free on the EDO website. worked hard over the past year to It provides useful and practical improve the coverage of the bulletin. information to campaigners about the • Climate Law Bulletin possible criminal and civil implications The EDO has produced a new of their actions and is used as a e-bulletin covering climate law and reference guide by many of the major policy. The new bulletin is released campaigning organisations as well as every two months and has a rapidly local community groups and individual growing subscriber list. It covers campaigners. developments in climate law and • Environmental Law Fact Sheets policy in Australia and overseas and Throughout 2008-2009, the EDO is used by a range of stakeholders to updated its comprehensive list of keep abreast of this rapidly expanding environmental law fact sheets. Some area of law. of the fact sheets were amalgamated • Private Conservation: A Guide For and a number of new fact sheets were NSW Landholders created. The EDO’s fact sheets are The EDO has received funding available on the website; they are a from the NSW Environmental widely used resource and continue to Trust to produce a free booklet be our most popular publications. outlining the various options for conserving biodiversity values on

20 EDO ANNUAL REPORT 2008-2009 private land. The booklet will provide Papers and Presentations comprehensive analysis of each option Over the past 12 months, the and is intended to help landholders EDO has continued to place choose the option that is right for particular emphasis on presenting them. The booklet is currently in a public interest perspective on draft form and will be released early environmental law matters in a in 2010. range of external forums. In 2008- • Caring For The Coast: A Guide To 2009, EDO staff delivered over 40 Environmental Law For Coastal external presentations at conferences, Communities In NSW universities and CLE seminars, and This publication has been funded published 19 papers in journals, through the Commonwealth bulletins and books. Following one of Government’s Caring for Our our presentations, the EDO received Country Program. It will be a free the following feedback: guide to the various laws that address Thank you for making such a coastal environmental and planning worthwhile contribution to our Community Programs issues. It is intended to help coastal Landcare Adventure on 25th communities understand the laws March. Your talk was a bit of an and policies in place to protect the eye opener to many of us. You coast and thus improve community are aware of how many people engagement in managing coastal tend to “run a mile” when lawyers ecosystems. The booklet is currently in are mentioned, so your calm draft form and will be released early presentation really helped put in 2010. some logic and commonsense into • Major Projects Toolkit the environment in which we work. We can feel more confi dence in The EDO has received funding from what we do now we know that the City of Sydney to produce a your organisation is there to help free community guide to project and work out problems for the assessment under Part 3A of the best solution. EP&A Act 1979. The toolkit outlines the Part 3A assessment process with The [Rural Landholder’s Guide] a focus on opportunities for public you left us (which we put in each participation and examples of best delegate’s bag) is a wonderful practice. The toolkit is currently in reference. It is very clear, listing the draft form and is due for release problems we often worry about. in October 2009. It will be a free In addition, the tabulation of useful resource for city residents. organisations and their contact details is invaluable.

EDO ANNUAL REPORT 2008-2009 21 Website conduct capacity-building work in the The EDO website contains an Pacifi c, with a focus upon providing extensive range of information on support to the Environmental Law the EDO’s core functions such as Centre and other organisations information on access to the EDO’s working in public interest services, copies of policy submissions, environmental law in PNG. The case notes on litigation, information on scope of work has been extended up-coming workshops and seminars, and diversifi ed under the current copies of most EDO publications and grant, so that the EDO now works links to EDO offi ces in other States. to build capacity in public interest environmental law more broadly In 2008-2009, the EDO recorded across the Pacifi c, encompassing an average of 24,017 downloads organisations in several countries and per month from the NSW site, the full range of the EDO’s expertise. an increase of 40% over the previous year. Highlights of the EDO’s capacity- Community Programs building work in 2008-09 include: The address of the EDO website is www.edo.org.au/edonsw • Bringing lawyers from PNG and the Solomon Islands to attend training, watch EDO matters before the 2. INTERNATIONAL Land & Environment Court and PROGRAM meet with judges, barristers, The EDO is committed to improving scientists and others practising law the effectiveness of environmental in NSW in May 2009 law as a tool for defending the • Presenting seminars and training on environment internationally. For environmental law in Samoa, the a number of years, the EDO has Solomon Islands and Fiji on topics worked with partner organisations including advocacy and litigation to build capacity in public interest skills, and climate change litigation environmental law in Asia and the • In July 2008, involvement in Pacifi c, primarily in Papua New environmental law training in Guinea (PNG), Fiji and the Solomon Indonesia (Surabaya and Makassar) Islands. Increasingly, the EDO’s for judges, prosecutors and international work also involves policy community advocates as part of development and participation in the Australian Marine Science and international networks. Technology Ltd team who were Legal Capacity-Building In The funded by AusAid to conduct the South Pacifi c training as part of the Indonesia The EDO has been funded since 1998 Australia Specialist Training Program by the US MacArthur Foundation to

22 EDO ANNUAL REPORT 2008-2009 • Providing support and assistance Pacifi c region, predominantly from the to the Public Solicitor’s Offi ce in South Pacifi c, who will provide advice the Solomon Islands in establishing and strategic guidance for the EDO’s their Landowners Unit that will capacity-building activities. support communities affected by Volunteer Placements logging in the Solomon Islands. Ongoing support in 2009-2010 will The EDO is an Australian Partner be provided to the Unit through Organisation for both the Australian the placement of Elaine Johnson as Youth Ambassadors for Development an Australian Youth Ambassador for (AYAD) and Volunteering for Development (AYAD) in this offi ce International Development from Australia (VIDA) programs. These • Providing legal, scientifi c and policy schemes enable the EDO to create advice to groups in PNG, Fiji, the AusAID funded-placements for Solomon Islands and the Cook Australians with organisations in Asia Islands on issues including forestry, and the Pacifi c, providing an effective trespass, mining, marine law Community Programs way of building environmental including protecting marine species, legal capacity in host organisations assessment of damages, anti- while developing the skills and corruption measures, contract law understanding of Australian lawyers, and legal professional privilege and scientists and policy offi cers. The EDO seabed mining. It is worth noting has also become one of the fi rst that the committee reviewing the partners of Lawyers Beyond Borders, Draft Seabed Minerals Bill for the an initiative launched in May 2009. Cook Islands was directed to make the EDO submission available to The EDO created a record number of the Legal Drafter in London assignments in 2008-2009, particularly in the area of climate change. In The EDO is also working to improve September 2008, Justine Conaty the effectiveness of our capacity commenced as a Legal Offi cer with building activities. In February 2009, the Ministry of Natural Resources and we received conditional acceptance Environment in Samoa. In March 2009, to become a signatory to the Elizabeth Caldwell commenced with Australia Council for International the Centre for Environmental Law and Development Assistance Code of Community Rights (CELCOR) in PNG Conduct, and we are in the process of and Emma de Campo commenced establishing an International Advisory with the United Nations Industrial Committee. The Committee will Development (UNIDO) Regional consist of senior advocates, scholars Offi ce in Beijing, China. In July 2009, and members of local, regional and nine volunteers will commence international organisations active in assignments with government and environmental protection in the Asia-

EDO ANNUAL REPORT 2008-2009 23 non-government organisations Climate Change, in partnership with working on climate change education the Foundation for Aboriginal and and policy in Fiji, the Solomon Islands, Islander Research Action. The EDO Tonga, Vietnam and Vanuatu. These also undertook considerable work on assignments were inspired by the climate change and forestry issues, in international youth delegation at the particular on ‘reducing emissions from United Nations Framework Convention deforestation and forest degradation’ on Climate Change (UNFCCC) in (REDD) to support partner Poznan, Poland, and the EDO worked organisations in the Pacifi c. The EDO with the Australian Youth Climate also attended the 8th meeting of Coalition in developing the proposals. the Asia Forest Partnership and AFP The EDO also continued to support Dialogue, on REDD and Combating AYAD placements with the Centre for Illegal Logging in Bali, Indonesia, in Human Rights and Development in May 2009. Mongolia (currently being undertaken Through our Indigenous Solicitor, the

Community Programs by Melody Coutman). EDO also participated in meetings of the working group on Access and International Policy Benefi t Sharing under the Convention Engagement on Biological Diversity in Vienna, Austria In 2008-2009, the EDO’s international in December 2008 and in Paris, France policy work focused on climate in March 2009. change and Indigenous issues. International Networks The EDO attended the Conference ANEDO was confi rmed as a member of the Parties of the UNFCCC in of the International Union for the Poznan, Poland in December 2008. Conservation of Nature (IUCN) The EDO was part of the Climate at the IUCN World Conservation Action Network Australia (CANA) Congress in Barcelona, Spain in delegation and provided legal advice October 2008. The EDO is working and support to Australian NGOs with the Oceania Secretariat, based and to delegates from the Pacifi c in Suva, Fiji, to build environmental during the negotiations. In June legal capacity in the region. The EDO 2009, the EDO received provisional visited the Secretariat in March 2009, accreditation as an observer to and attended IUCN meetings in the UNFCCC. Canberra and Sydney as well as the The EDO made submissions to the IUCN Congress. Royal Society on Geo-engineering the Earth’s Climate, in partnership with Professor Rosemary Rayfuse of UNSW, and to the UN Human Rights Council on Human Rights and

24 EDO ANNUAL REPORT 2008-2009 Environmental Law Alliance position is multi-disciplinary and Worldwide provides input into policy submissions and international programs as they EDO staff are active members of relate to Indigenous peoples. the Environmental Law Alliance Worldwide (E-Law), an international The Indigenous Solicitor has network of public interest continued to build relationships with environmental lawyers and scientists. existing clients as well as developing The EDO attended E-Law’s 2008 relationships with new clients over the annual meeting in Mobassa, Kenya year, with increasing requests for legal with Anne Kajir, Director of the PNG and policy advices. Environmental Law Centre, thanks to There has been ongoing demand a grant from the Christensen Fund. for the publication Caring for Country: For more information about E-LAW, A Guide to Environmental Law for see www.elaw.org Aboriginal Communities in NSW. The EDO funded a second print run to

Assisting Environmental Community Programs meet demand. Lawyers From Overseas The Aboriginal Advisory Committee The EDO hosted a public interest continues to provide invaluable environmental lawyer from Scotland advice and input into EDO Caring who was on an information gathering for Country initiatives. Two additional trip to Australia. Frances McCartney members were appointed to the is the Director of Environmental Committee during the 2008 -2009 Law Centre, Scotland and she spent year – Constance Chatfi eld and a week observing the work of the Tabitha Timbery-Beller. offi ce in order to learn more about practising in the public interest. On 28 May 2009, the EDO convened an Aboriginal Cultural Heritage Roundtable at Gilbert and Tobin in 3. INDIGENOUS Sydney to facilitate discussion about ENGAGEMENT PROGRAM Aboriginal cultural heritage law and During 2008-2009 the role of the policy in NSW. The Roundtable Aboriginal Liaison Offi cer (ALO) brought together Aboriginal clients increased to a full time position of the EDO and members of the working 3 days per week on litigation EDO Aboriginal Advisory Committee, and two days a week coordinating the including Traditional Owners, as Caring for Country Project. The ALO well as representatives of the NSW was also renamed the Indigenous Aboriginal Land Council, Native Solicitor to better refl ect the nature Title Services, and Murray Lower of the work undertaken. Within Darling Rivers Indigenous Nations. the Offi ce, the Indigenous Solicitor The Roundtable discussion enabled

EDO ANNUAL REPORT 2008-2009 25 participants to voice their concerns from culturally and linguistically diverse with the current system and discuss backgrounds and young people. options for reform, including proposed At a general level, the Accessibility changes in NSW. The EDO will program ensures that these two continue to work for law and policy groups are specifi cally targeted when reforms in this area. the EDO promotes its services. The Indigenous Solicitor has More specifi c projects have been participated in international undertaken to increase the visibility negotiations concerning the of the EDO in these target groups. Convention on Biological Diversity Throughout the project period the and the programme of action for EDO engaged these target groups in the protection, and promotion of the following ways: traditional knowledge pursuant to People From Culturally article 8(j) of the Convention on And Linguistically Diverse Biological Diversity. Backgrounds Community Programs The Indigenous Solicitor was appointed Specifi c initiatives this year, include: to the Inaugural Aboriginal Advisory Committee of the Australian Law • Translated information about the Reform Commission in April 2009. EDO was placed on the home page of the EDO website. The The EDO also participated in NSW information explains the EDO and Young Lawyers Shadowing program the range of services it provides. with Aboriginal student Natahlia So far this information has been Houlten, from Kempsey now studying translated into Spanish, Arabic, at St Vincents College. Natahlia French, Cantonese and Mandarin. attended the Offi ce for a week and The information was translated by viewed our work. bilingual EDO volunteers and staff. The information will be translated 4. ACCESSIBILITY PROGRAM into more languages as the In 2008-2009 the EDO continued to opportunity arises develop an Accessibility program. The • A letter was sent to over 80 peak Accessibility program aims to expand organisations servicing clients from the EDO’s constituency to ensure culturally and linguistically diverse that a broad cross-section of the backgrounds. The letter explained community accesses EDO services. the services provided by the EDO The EDO has identifi ed two key and encouraged the organisation to groups that are underrepresented refer clients with environmental law in accessing EDO services – people issues to the EDO for assistance

26 EDO ANNUAL REPORT 2008-2009 The EDO continues to provide advice Other regular placements include to people with little to no English students completing the ‘Practising in through Translation and Interpreting the Public Interest’ course conducted Service (TIS) National. This service by the Public Interest Law Clearing allows clients to call the EDO via House and the Public Interest an interpreter. Advocacy Centre. Throughout 2008- 2009 the EDO accepted three lots Young People of placements with each placement The EDO engages with young people comprising 2 students for one day of primarily by providing opportunities intensive training in public interest law for student volunteers to learn about in practice. and apply their skills in environmental The EDO also attended Climate law. The EDO has increased its Camp in Newcastle in July 2008. This capacity to host student volunteers camp provided an opportunity for to four per day. Student volunteers the EDO to engage with and assist greatly assist the work of the EDO by young people to take action on an Community Programs conducting legal research and assisting issue that is particularly important with the day to day running of to them – climate change. The EDO litigation. In return, the EDO provides provided on-the-ground legal advice professional guidance, the opportunity to people participating in the camp to learn and develop new skills and and arranged for legal representation job references. for some of those arrested during the In addition to regular volunteers, direct action. the EDO accepts formal student The EDO and Maddocks have teamed placements from the following up to sponsor a student writing prize. institutions: Maddocks sponsors the prize which • University of Wollongong is open to all university students. The • University of Sydney students are invited to submit an article for publication in the EDO’s • University of Western Sydney legal journal IMPACT! and the winner, • University of Technology in addition to being published, is • University of Wollongong awarded $500. • College of Law Students from these institutions complete coursework with the EDO, learning about environmental law under the direct supervision of EDO solicitors.

EDO ANNUAL REPORT 2008-2009 27 • Interview on Prime TV News - Media and “Splendour court case” (7 May Communications 2009) • NBN TV News - “Splendour court case” (EDO clients) (7 May 2009) The media is important to the EDO Radio as it provides an effective means of highlighting the issues we engage • Interview with ABC North Coast with and promoting the work of Radio regarding the Hastings Point the EDO. Over the past couple of case (July 2008) years, the EDO has placed a much • Interview with ABC North Coast greater emphasis on its media and Radio about planning workshops communications work. (July 2008) In 2008-2009, the EDO has received • Interview with Bay FM Radio on signifi cant media exposure, either the planning law changes and the through direct mentions, or through development application for a our clients where the media reported Splendour in the Grass festival at on one of our matters. We have Yelgun (1 August 2008) indicated where the media related to

Media and Communications Media and • Interviews with ABC North Coast our clients. Radio about the planning reforms Media coverage of the EDO or EDO- (4 & 6 August 2008) related matters includes: • ABC Radio National - “NSW Television Government brushes off calls for • 7:30 Report - “Farmers Angry As independent catchment study” Mining Companies Move In” (EDO (EDO clients) (19 August 2008) clients) (July 2008) • Interview with ABC North Coast • A Current Affair - “BHP - the Big Radio on human rights and the Aussie Bully” (EDO clients) (23 July environment (August 2008) 2008) • Interview on ABC North Coast Radio • 7.30 Report - “Climate change on the EDO’s Brainfood in Byron threatens coastal towns” (EDO Seminar Series (29 August 2008) clients) (10 September 2008) • Interview on ZZZFM Radio on the • Interview on NBN North Coast EDO’s Brainfood in Byron Seminar News about climate change (31 series (2 October 2008) January 2009) • Interview with FBI Radio on climate • Interview with WIN TV on the change and adaptation (November Wollongong LEP (4 April 2009) 2008)

28 EDO ANNUAL REPORT 2008-2009 • Interview with ABC Radio on Newspapers carbon capture and storage (13 Articles November 2008) • Sydney Morning Herald - “Miners • ABC News - “Appeal lodged against at the Coalface of Change” (EDO Splendour festival” (EDO clients) clients) (5 July 2008) (19 November 2008) • Sydney Morning Herald - • Interview on ABC Radio, The World “Bureaucrats take axe to logging Today - “Australian Alps added to data” (5-6 July 2008) conservation agenda” (November 2008) • Byron Shire Echo - “Sartor cops a bagging at Bruns protest” (5 August • Interview on ABC Radio promoting 2008) upcoming CPRS/climate change seminar on 3 February 2009 (29 • Byron Shire Echo - “Councillors January 2009) give nod to Splendour at Yelgun in close decision” (EDO clients) (5 • Interview on ABC North Coast August 2008) Radio about the Iron Gates case (5 February 2009) • The Northern Star - “Government puts stop on quarry” (EDO clients) • Interviews on ABC Radio about

(5 August 2008) Communications Media and Splendour in the Grass case (12 & 20 February 2009) • Sydney Morning Herald - “Paroo pact ‘breached’” (EDO clients and • Interview on Gosford Radio 2GO Scientifi c Advisory Service) (15 about the Ourimbah workshop (3 August 2008) March 2009) • Northern Star - “Rous may pull the • ABC North Coast Radio - “Interview plug” (23 August 2008) with CONOS President Bob Oehlman” (EDO clients) (8 May • Sydney Morning Herald - “Residents 2009) ready to use green bans to stop bay development” (EDO clients) (4 • Interviews on ABC Local Radio September 2008) about the Repco Rally Australia (25 & 26 June 2009) • Tweed Echo - “Legal centre joins draft-plan doubters” (11 September 2008) • The Northern Star - “Court action again delays Condon development” (13 September 2008)

EDO ANNUAL REPORT 2008-2009 29 • The Northern Star - “Threat of • Sydney Morning Herald - “River legal action over Kyogle IGA” (16 ‘killed’ by pollution feeds city September 2008) water supply” (EDO clients) (2 • Daily Examiner - “Shun Rumour: December 2008) Mill push alive” (22 September • Byron Shire Echo - “Court date set 2008) for Splendour challenge” (EDO • The Northern Star - “Developer clients) (16 December 2008) warns Art Deco buffs of legal • Sydney Morning Herald - “The action” (10 October 2008) Sydney Magazine Special Issue • The Australian - “Litigation – ‘the (top 100) 2008 Sydney’s prods governments into action most infl uential people’” (Issue 69, on climate” (EDO clients) (17 January 2009) October 2008) • Manly Daily - “Councillors want • Sydney Morning Herald - “Groups towers fi les access” (EDO clients) rally against planning laws” (EDO (18 February 2009) clients) (19 October 2008) • Sydney Morning Herald - “Cute, • Northern Rivers Echo - “Water rights endangered and legal to shoot” subject of EDO talk” (28 October (EDO clients) (20 February 2009) Media and Communications Media and 2008) • Northern Rivers Echo - “Dunoon • Byron Shire Echo - “Splendour celebrates DA withdrawal” (EDO approval taken to court” (EDO clients) (26 February 2009) clients) (18 November 2008) • Richmond River Sun - “Iron Gates • Northern Rivers Echo - “Quarry no clean-up will be pursued” (February champion to the people” (EDO 2009) clients) (20 November 2008) • The Northern Star - “Organisers • Australian Associated Press - “Mining abandon Splendour trial” (EDO projects may face more scrutiny” clients) (27 March 2009) (EDO clients) (26 November • Sydney Morning Herald - “Treasures 2008) looted and sold online” (EDO • Northern Rivers Echo - “Logging clients) (2 April 2009) leaves locals livid” (EDO clients) • The Northern Star - “Heated views (27 November 2008) on carbon permits” (7 April 2009) • The Northern Star - “Kyogle rallies • Sydney Morning Herald - “Small around new race” (EDO clients) (2 farmers take fi ght to mighty miner” December 2008) (EDO clients) (13 April 2009)

30 EDO ANNUAL REPORT 2008-2009 • Rural Press - “Council faces court others” (EDO clients) (30 May over Big W decision” (EDO clients) 2009) (14 April 2009) • Sydney Morning Herald - “Seeing red • South Coast Register - “Terara over logging in land of rare parrot” residents hint at legal action” (15 (EDO clients) (1 June 2009) April 2009) • Sydney Morning Herald - “Motor • Sydney Morning Herald - “New laws rallies hassle-free for 10 years” to protect Aboriginal artefacts” (EDO clients) (3 June 2009) (EDO clients) (16 April 2009) • Sydney Morning Herald - “Huge land • Sydney Morning Herald - “Luxury deals ‘illegal’” (9 June 2009) homes plan for Currawong • Sydney Morning Herald - “Deal or rejected” (EDO clients) (29 April no deal? Developer sits tight” (10 2009) June 2009) • The Manly Daily - “Currawong • Northern Star - “Repco Rally’s latest saved” (EDO clients) (29 April PR fi asco” (11 June 2009) 2009) • Northern Rivers Echo - “Lantern • Sydney Morning Herald - “Norfolk Parade great debate puts roo on warrior against rubbish” (EDO

the menu” (11 June 2009) Communications Media and clients) (4 May 2009) • Sydney Morning Herald - “Toxic • The Northern Star - “Byron metals threat” (18 June 2009) Splendour plans in doubt” (EDO clients) (8 May 2009) • Sydney Morning Herald - “Labor knew about toxic water threat” (19 • The Northern Star - “Sue lays down June 2009) the law to save the planet” (15 May 2009) • Newcastle Herald - “No retrospective on $300m plans” (19 • Sydney Morning Herald - “Resident June 2009) fears over electricity upgrade” (EDO clients) (19 May 2009) • Northern Star - “Stink over chicken poo” (20 June 2009) • Sydney Morning Herald - “Warden upholds coalmining plan” (EDO • Northern Star - “Rally given green clients) (22 May 2009) light” (24 June 2009) • Sydney Morning Herald - “Heritage • Sydney Morning Herald - “Bush interests out, apartments in” (EDO bashing: rally laws override locals” clients) (30 May 2009) (25 June 2009) • Sydney Morning Herald - “The • Northern Rivers Echo - “Fowl stench Hunter – a peephole to future of brewing at Tatham” (25 June 2009)

EDO ANNUAL REPORT 2008-2009 31 Columns • Clearing a way for koalas Through the Northern Rivers Offi ce, (December 2008) the EDO has written regular columns • Koala Plan fails to impress in the Northern Rivers Echo, the (December 2008) Northern Star (Farmers Bulletin) and • Climate change (December 2008) Byron Bay Echo. Columns have been written on the following topics: • The possibilities and perils of biodiesel for fuel (February 2009) • Noise from agricultural activities (July 2008) • Biodiesel for consumers (February 2009) • Protecting koala habitat (July 2008) • Dirt roads causing residents • Wild dog management (July 2008) problems (March 2009) • Trees as carbon sinks (August • Easy access makes big difference 2008) for the public (May 2009) • Dunoon dam (August 2008) • Transparency and public • Private covenants as consent participation in planning (May conditions (August 2008) 2009) • Local heritage protection • The buzz on biofuels (January (September 2008) 2009) Media and Communications Media and • Phone tower concerns • Impacts of a proposed gas pipeline communicated (September 2008) (April 2009) • Travelling Stock Routes • Managed Investment Schemes (September 2008) (May 2009) • Pesticide spray drift from timber Newsletters plantations (October 2008) • Live Wires - “The EPBC Act and • Putting the environment into the biodiversity conservation” (July Lismore plan (October 2008) 2008) • Burning question about sugar cane • Dunoon and District Gazette – (October 2008) “Never underestimate people • Toxics and human rights power” (April/May 2009) (November 2008) Online • Genetically modifi ed crops • EDO page created on Wikipedia (November 2008) (February 2009): • If you do the crime, do you do the http://en.wikipedia.org/wiki/ time? (November 2008) Environmental_Defender%27s_ Offi ce_NSW • Twelve months to save the world – no, really (December 2008) • EDO created a Facebook page

32 EDO ANNUAL REPORT 2008-2009 PART B: PRIORITY AREAS

development in circumstances where Climate Change fl ooding was identifi ed as a major constraint on development of the site. Casework In the past year, the Minister for Planning successfully appealed to Walker v the Minister for the NSW Supreme Court, Court [2008] NSWCA 224 of Appeal. Ms Walker then sought As reported last year, the EDO special leave to appeal to the High assisted Jill Walker, a local resident, in Court. The application was heard in a successful Land and Environment March 2009. The High Court declined Court challenge to a Concept to grant leave on the basis that Plan approval of a development while there were valid arguments in Climate Change at Sandon Point. The proposed her favour, they did not think those development was for up to 285 arguments would succeed if the homes and an aged care facility to be appeal was heard by the High Court. built on fl ood-prone coastal land. Caroona Coal Action Group Inc It was argued that the Minister v Coal Mines Australia Pty Ltd & failed to take into consideration Minister for Mineral Resources the recommendations and fi ndings By June 2009 the EDO was in of a Commission of Inquiry report, the late stages of commencing and that the Minister failed to proceedings in the Land and apply the principles of ecologically Environment Court on behalf of sustainable development (ESD) when the Caroona Coal Action Group deciding to approve the proposal. Inc to challenge the exploration In a detailed judgment, Justice Biscoe licence and coal authorisation found that the Minister for Planning granted to Coal Mines Australia Pty had failed to consider ESD by failing Ltd (a subsidiary of BHP Billiton). to consider whether the impacts of The exploration licence covers over the proposed development would 300 square kilometres at Caroona be compounded by climate change; in the Liverpool Plains region of in particular, by failing to consider NSW, which is recognised as one whether changed weather patterns of Australia’s most productive would lead to an increased fl ood food bowls. It is believed that the risk in connection with the proposed

EDO ANNUAL REPORT 2008-2009 33 coal reserves in the area are in • Attendance at Climate Camp with excess of 500 million tonnes. It is ongoing legal advice and assistance BHP Billiton’s intention, if granted to arrestees during the three- approval by the NSW Government, day camp, in consultation with to then establish a large longwall criminal lawyers organised by the mine development to extract the EDO to give advice at the camp coal over a 30-50 year period. The • Conference with pro bono fi rm Caroona Coal Action Group Inc is and the organisers of “Climate particularly concerned about the Ride 2008” in relation to public impact that exploration and mining liability insurance and the text will have on the unique groundwater of waivers and disclaimers systems of the Liverpool Plains, Climate Change and the compatibility of mining and • Advice to national climate continued agriculture in the region. groups on World Heritage in Danger listing and impacts The legal challenge will be based on cultural heritage values on the Minister for Mineral Resources’ failure to follow the • Ongoing advice regarding a coal- correct procedures for granting fi red power station in the Hunter, an exploration licence and a including the release of harmful transfer of a coal authorisation. In wastes (CO2) to the environment, particular, it will be alleged that monitoring required under licence, the Minister did not consider the lodging a FOI application, technical need to conserve and protect the research and engaging climate fl ora, fauna, fi sh, fi sheries, scenic experts to prepare reports attractions and features of Aboriginal, • Conference with Australia-wide architectural, archaeological, historical conservation group and other or geological interest in the land as activists about potential EDO required by the Mining Act 1992. NSW support work regarding The Scientifi c Advisory Service has a new power station in WA played a key role in the formulation • Advice on Mandatory of this case, including site visits, Renewable Energy Target obtaining advice from a range of (MRET) regulations relating to experts, reviewing key documents burning native forest waste and in-house advice to the clients. • Policy assistance on a proposed Bill [Proceedings were commenced on 7 to protect good quality agricultural July 2009 and the case has been listed land from mining activities for hearing on 26-29 October 2009.] • Advice, based on expert Legal and Technical Advice assistance, outlining the GHG The EDO has provided the emission implications of urban following advice this year, including: sprawl as opposed to infi ll

34 EDO ANNUAL REPORT 2008-2009 development regarding the Australian targets should be set Huntlee New Town development that are in line with international • Review of environmental obligations and scientifi c projections assessment and irrigation • Proactive analysis of the management plan for the White Paper for advice to Duralie coal mine extension, and conservation groups as needed engagement of expert from the • Consultancy for a national Expert Register to provide advice conservation group on the on potential impacts of altered draft Exposure Bill, with specifi c irrigation using mine wastewater advice relating to target setting, on the Mammy Johnson’s River compensation to industry,

• Letter to the Department reforestation and property rights Climate Change of Climate Change opposing • Attending a legal expert roundtable a proposed amendment to at invitation of Department greenhouse reporting requirements of Climate Change to provide under the National Greenhouse our views on the Exposure Bill and Energy Reporting Act that and to raise any concerns would remove the need to report on energy production • Undertaking several consultancies on behalf of major Australian Policy and Law Reform conservation groups to provide Carbon Pollution Reduction advice and drafting instructions on Scheme (CPRS) improvements to the CPRS Bill relating to, inter alia, fl exibility, price The EDO has engaged actively with fl oor mechanisms and including the Federal Government’s proposed deforestation in the scheme Carbon Pollution Reduction Scheme (CPRS) over the past 12 months. Our • Submission on behalf of ANEDO work has included the following: on the draft Exposure Bill • Submission on behalf of ANEDO • Submission to the Independent made to the Federal Government Pricing and Regulatory Tribunal as on the Carbon Pollution Reduction part of its review of whether NSW Scheme Green Paper, which mitigation measures are needed canvassed options and preferred in light of the proposed CPRS. approaches on issues, such as which The submission emphasised the industry sectors would be covered importance of complementary and how emission caps would be measures in order to address set. The submission emphasised that climate change in a coordinated the overarching objective of the manner, including the need for scheme must be an environmental laws and policies at all levels and one – to reduce Australia’s all fi elds e.g. transport, planning greenhouse gas emissions. codes, and coastal development

EDO ANNUAL REPORT 2008-2009 35 Renewable Energy of Resources, Energy and Tourism Renewable energy has a crucial on the Energy White Paper role to play as part of Australia’s emphasising the need to link long-term mitigation response to with renewable energy laws climate change. In the past year, the Climate Change and the Coast Australian Government has moved to The impacts of climate change on reform the regulatory framework on the coast and the need for regulatory renewable energy through expanding reform has been an important part the renewable energy target scheme. of the EDO’s recent casework The EDO has been actively engaged and policy and law reform (see, in this process through the following: for example, the Walker case and

Climate Change • Writing a submission on behalf the report on behalf of the Sydney of ANEDO in response to a Coastal Council’s Group in 2007-08). Discussion Paper by the COAG During the last 12 months, the EDO working group on Climate prepared a submission and appeared Change and Water on the before the House of Representatives Expanded National Renewable Inquiry into Climate Change and Energy Target Scheme Environmental Impacts on Coastal • Writing a submission on behalf of Communities. The EDO emphasised ANEDO to the Department of the importance of a robust State and Climate Change on its Exposure Federal framework to address the Draft of the Renewable Energy projected impacts of climate change (Electricity) Amendment Bill on coastal communities in Australia 2008, and related Regulations and discussed the common law and • Supporting a submission on behalf legislative framework relating to of ANEDO to the Senate Standing liability for climate change impacts Committee on Environment, from sea level rise. The report of Communications and the Arts on the Committee is due in late 2009. the Renewable Energy (Electricity) At the State level, the EDO Amendment (Feed-in Tariff) Bill 2008 responded to the Draft NSW • Undertaking a consultancy on Sea Level Rise Policy prepared by behalf of a major Australian the Department of Environment conservation group to provide and Climate Change, with specifi c a number of ongoing advices recommendations for improving and drafting instructions on the the policy and how to address Exposure Draft Bill in order to potential climate change impacts on enhance the incentives for less the NSW coast, as well as providing commercially viable forms of advice to various groups on the renewable energy generation policy. The EDO was assisted in this process by an expert from the • Writing a submission on behalf Register who reviewed the draft of ANEDO to the Department

36 EDO ANNUAL REPORT 2008-2009 policy and gave an assessment on was the need for a comprehensive whether the sea level rise planning framework to rigorously and benchmark was scientifi cally transparently assess forest carbon defensible. The NSW Government sink proposals in accordance with is yet to fi nalise the policy. ecologically sustainable development (ESD), and that ad hoc taxation Carbon Capture and Storage amendments are not suffi cient. In mid-2008, the Federal Government The EDO also drafted a report proposed new laws on Carbon, and briefi ng note on behalf of Capture and Storage through Humane Society International amendments to the Offshore Petroleum containing drafting instructions for and Greenhouse Gas Storage Act (CTH) a Commonwealth Tropical Forest 2006. The EDO NSW, on behalf of Climate Change Act, including how to introduce ANEDO, wrote two submissions on prohibitions and restrictions on the Bill, as well as appearing before timber importations from tropical an Inquiry hearing in July 2008. In forests. The advice was supported two separate Committee reports, in Parliament in a speech by Kelvin ANEDO was referenced on 16 Thomsen MP in December 2008. occasions, with our submission and evidence quoted extensively. A Climate Geoengineering number of recommendations picked In October 2008, the Royal Society of up on themes argued by ANEDO London launched a study on climate including the role for an expert geoengineering to help policymakers panel, the need for transparency and decide which schemes should be further and ongoing consultation and researched and deployed, if any. The community engagement. However, Society called for submissions. The the central arguments of ANEDO EDO prepared a multi-disciplinary around, for example, “greening” the submission highlighting the applicable Act, certainty around liability and international law and how this applies providing environmental safeguards in two case studies (sulphur-based for sensitive areas were not aerosols and ocean iron fertilisation). adopted by either Committee, nor The Society established a working included in the legislative changes. group to assess the submissions, and Carbon Sinks evaluate the different proposals, with a report expected in September 2009. The EDO led a submission on behalf of ANEDO to the Senate Climate Change and Natural Standing Committee on Rural and Resource Management Regional Affairs and transport in Last year, the EDO wrote a its inquiry on a draft Bill designed submission and presented evidence to provide tax incentives for the before the Standing Committee establishment of carbon sink forests. on Natural Resource Management A key argument in the submission (Climate Change). The Final

EDO ANNUAL REPORT 2008-2009 37 Report was released in May 2009 Annual Climate Change Summit and adopted some of our key 2008, 23 July 2008, Jeff Smith) recommendations such as the • “Climate Change Negotiations and better implementation of ESD in the Law” (UNSW International natural resource management issues. Environmental Law students, 3 The Final Report also references a August 2008, Amelia Thorpe) report by the EDO for the Sydney Coastal Councils Group, adopting • “Factoring Climate Change and its overarching recommendation, Sea Level Rise into Infrastructure namely, that the government should Development Decisions” provide better guidance for local (Local Government Sustainable government on adaptation. Development 2008 Conference, 11

Climate Change September 2008, Kirsty Ruddock) Programs • “Adapting to Climate Change The following program activities - a Legal Perspective” (Saving a addressing climate change took Sunburnt Country? The Challenges of place during 2008-2009: Species Adaptation in a Heating Land Workshops and Seminars NCC Conference, 13 November, Jeff Smith and Tom Holden) The EDO held fi ve events this year on climate change: • “Putting climate change on the agenda - can the community lead • “What’s Law Got to do with the push?” (Saving a Sunburnt Climate Change?” (Climate Country? The Challenges of Species Camp, Newcastle) Adaptation in a Heating Land • “Coastal Development, LEPs and NCC Conference, 13 November Climate Change” (Lake Macquarie) 2008, Kirsty Ruddock) • “Climate Change” (Ballina, with • “Councils’ responsibilities for Chris McGrath, barrister) climate change adaptation” (NSW • “Reporting back on the Climate Coastal Conference Wollongong, 6 Summit” (State Library, Sydney) November 2008, Robert Ghanem). • “The Federal Government’s • “Climate Change” (New Carbon Pollution Reduction England Landcare Adventure, Scheme: Impacts and Implications” 25 March 2009, Mark Byrne) (Edmund Rice Centre’s Pacifi c • “Climate Change and Coastal Calling Program, Sydney) Infrastructure” (NSW Sustainable Presentations Development Conference, 12-13 May 2009, Kirsty Ruddock) • “Understanding climate risk and the impact on legal action: state Papers and national perspectives” (2nd • Ghanem R, Ruddock K and Walker J (2008) “Are our laws

38 EDO ANNUAL REPORT 2008-2009 responding to the challenges posed to our coasts by climate change?” Climate Change and the Law UNSW Law Journal at pp 40-47. • Ruddock K (2008) “Climate Change Impacts in the Torres Strait” 7(8) Indigenous Law Bulletin at pp 2-3, 6. • Ruddock K and Green D (2009) “Could Litigation Help Torres Strait Islanders Deal with Climate Impacts?” in Sustainable

Development Law and Policy – Climate Change Climate Change Reporter (American University Washington College of Law/ACLE), Winter 2009, Volume IX (2) at pp 23-31. • Thorpe A (2008) “Tort-based climate change litigation and the political question doctrine” 24 Journal of Land Use and Environmental Law at pp 79-105. • Walker J (2008) “Failure to Consider the Impacts of Climate Change in Part 3A approval” 6(5) Local Government Reporter (January/ February 2008) at pp 70-72.

EDO ANNUAL REPORT 2008-2009 39 previous commitment to maintain the Environmental existing two storey character of the Planning and hamlet, are manifestly unreasonable. The cases were heard together Development before Justice Pain in the Land and Environment Court. Her Honour dismissed one application and allowed the other. With regards to the Aeklig Casework development, the Court found that Hastings Point Progress Council was not required to take Association v Tweed Shire into account the provision in the Council & Aeklig P/L; LEP as State Environmental Planning Policy - Seniors Living allowed Hastings Point Progress the setting aside of local planning Association v Tweed Shire controls in the LEP that would Council & Planit Consulting P/L; otherwise prohibit the development. Hastings Point Progress The Association appealed this Association v Tweed Shire decision to the Court of Appeal, Council & Aeklig P/L (Appeal) and judgement has been reserved. The EDO Northern Rivers acted However, with regards to the for the Hastings Point Progress Planit Consulting development, Association Inc in two Land and there was a successful outcome. Environment Court proceedings The Court held that in granting challenging two separate development consent to a 3 storey multi-housing consents granted by Council which development, Council failed to allowed 3 storey developments in take into account the cumulative the coastal hamlet of Hastings Point impacts of the development as on the Tweed Coast, contrary to was required by the Tweed Local the existing character of the area. Environmental Plan and therefore the development consent was invalid. The Association claimed that the Environmental Planning and Development and Planning Environmental developments would change the Following the decision on the existing character of the coastal Planit Consulting development, hamlet. It also argued that in the proponent resubmitted the consenting to the developments, same DA to Council. The Council Council breached its own local refused the development. At the planning controls by failing to take same meeting, Council voted to into account the cumulative impacts adopt planning controls limiting that the developments will have on all buildings south of the bridge in the site’s community, locality and Hastings Point to no more than catchment. It further argued that the 2 storeys in height in accordance decisions of Council to consent to the with the recommendation of the 3 storey developments, given a clear Rueker Report (the independent

40 EDO ANNUAL REPORT 2008-2009 consultant engaged to review land at Catherine Hill Bay for a building heights in Hastings Point). conservation reserve. Following The EDO understands that the the signing of the MOU (which Mayor gave a speech at the meeting was also formalised in a Deed), the commending the action of the former Minister agreed to consider a Association in protecting the Concept Plan proposal for the sites unique character of the coastal under Part 3A of the EP&A Act 1979. village of Hastings Point from Approval was subsequently granted. inappropriate development. Gwandalan Summerland Point Action Group challenged the Concept Plan Gwandalan Summerland approval on two grounds. The fi rst Point Action Group v Minister ground alleged that there was a for Planning & Rosecorp reasonable apprehension of bias in In September 2008, the Minister for the decision-making process by the Planning approved a Concept Plan for former Minister. The second ground an extensive subdivision development alleged that he had unlawfully taken by Rosecorp on development sites into account the terms of the MOU at Catherine Hill Bay and Gwandalan. and the Deed signed with Rosecorp. The EDO acted for the Gwandalan [Postscript: Judgment was delivered in Summerland Point Action Group, this matter on 31 August 2009. Justice which commenced legal proceedings Lloyd held that both the concept plan in the Land and Environment approval and the project application Court challenging the approval. approval were void, as the grounds Prior to lodgement of the Concept relating to a reasonable apprehension Plan application, the Gwandalan and of bias and the taking into account of Catherine Hill Bay sites were zoned irrelevant considerations were made for environmental protection, and out. The case attracted considerable the Department of Planning had media attention and analysis]. ranked these sites as the lowest Friends of Currawong Inc v priority for urban release. The sites Minister for Planning & Ors contain signifi cant populations Development and Planning Environmental of the threatened plant species The EDO commenced proceedings Tetratheca juncea, and have important on behalf of Friends of Currawong scenic and heritage values. in the NSW Land and Environment Court to prevent the Minister However in 2006 a Memorandum for Planning from approving part of Understanding (MOU) was signed of the Currawong development. between Rosecorp and the former These proceedings were brought Minister for Planning under which he on the grounds that the EP&A Act agreed to facilitate development of 1979 prohibits the Minister from these sites for residential purposes. approving that part of the project. In exchange, Rosecorp was to dedicate a 300 hectare parcel of

EDO ANNUAL REPORT 2008-2009 41 Friends of Currawong sought a However, the amendment to the SEPP declaration from the Court that the was mis-drafted, so that the project Minister for Planning is prohibited is arguably still not permissible. from approving the part of the This matter is due to be project that is within the “County heard in August 2009. Open Space” zoning under the Pittwater Local Environmental Plan Legal and Technical Advice 1993. Friends of Currawong was The EDO receives many inquiries also seeking orders restraining the from the community about planning Minister from approving that part and development issues through of the project under Part 3A, and our telephone Inquiry Line. The restraining the Director-General of EDO has provided the following the Department of Planning from advice this year, including: preparing a report for the Minister on that part of the project. • Advice to an environment group at Ryde about the LEP amendment The proceedings were discontinued process for urban bushland, when the Planning Minister, Kristina including letter to Council to raise Keneally, refused the development legal issues about the appropriate application for the subdivision zonings in the new LEP prepared and development of Currawong under the Standard Instrument. Beach. The site is now to be listed Against the advice of the on the State Heritage Register. Department of Planning, Council Hill Top Residents Action Group voted to change the zoning of all v Ministers for Planning and its urban bushland under the draft LEP to Environment Conservation, NSW Sport and Recreation providing a much greater level In this case the EDO is representing of environmental protection Hill Top Residents Action Group in their Land and Environment Court • Advice on a rezoning proposal challenge to the Minister for Planning’s at Green Point, near Forster, consent to a major project, being including a review of documents Environmental Planning and Development and Planning Environmental a regional shooting complex. The and expert advice Scientifi c Advisory Service reviewed • Advice to a Landcare group in the various ecological assessments (and Tweed regarding its submission on independent reviews of same) to the Tweed Coast Regional Crown assist in the decision on whether to Reserve Plan of Management challenge the environmental aspects • Advice to a resident of a of the proposal. The development was caravan park on community land not permissible under the existing about ability to protect interest planning controls in place at the time, through lodgement of caveats so the Minister amended a State Environmental Planning Policy in • Advice to a resident on order to allow the project to proceed. rural cemetery laws

42 EDO ANNUAL REPORT 2008-2009 • Advice to a resident regarding • Advice to a resident of Casuarina the use of community Beach regarding a Part 3A land for a rugby club Concept Plan and existing • Ongoing assistance to a easement for the Town Centre community group about • Advice on the appropriateness classifi cation of convict stockyard of a DA for a youth centre at • Advice to a resident about the Bunbury Reserve in Macquarie legality of a helipad in a rural zone Fields. The DA was refused at the site, while an alternative, more • Ongoing advice for resident appropriate, site was chosen objectors for a case in the Land and Environment Court about a • Advice to a conservation large development in Jamberoo. association at Nambucca The Council was successful in Valley about the interaction defending the appeal, meaning the of gene technology and development was not approved planning legislation in NSW • Meeting with Council raising • Advice to community group about client concerns about compliance rezoning of open space on the with planning consent by a foreshore at Newcastle. The group quarry operation in Lismore used the advice to “upzone” certain areas in line with their objectives • Advice to Central Coast groups on clearing vegetation in breach • Brief to Counsel on behalf of a of development consent community group at Dunoon for advice about whether a • Brief to Counsel on behalf of a proposed residential development community group for opinion would be inconsistent with the on prospects on challenging relevant zoning objectives a carparking development at Berowra Waters Marina • Policy advice to a national conservation group on • Advice on challenging coastal law reform issues

development consents on the Development and Planning Environmental South Coast on zoning grounds • Advice to residents on Redfern- Waterloo Authority proposals • Ongoing advice to a local residents group at Newington • Advice regarding existing use on V8 Supercar issues rights for an onsite sewerage management system • Advice to a local heritage committee regarding Council • Advice to a community group on consent to demolition of a designated development appeal signifi cant heritage building rights if Champions Quarry for a supermarket in the expansion is approved by Council main street of rural Kyogle

EDO ANNUAL REPORT 2008-2009 43 • Advice on compensation and a DCP for council control of acquisition issues in relation to development on the site; the need public open space at Little Manly for a public hearing; and the failure • Advice on obligations to take SEPP 71 into account to remove trees • Advice to a residents association • Advice to a resident regarding the regarding grounds for review of reclassifi cation of community land decision to grant modifi cation to operational in a draft Byron LEP approval to Woolworths proposal at Mullumbimby, allowing on- • Advice to a residents group on site sewerage in fl ood zone challenging the spot-rezoning of an LEP in the Dee Why Town Centre • Advice to a community association at Duffys Forest on breaches • Comprehensive submission on of a development consent behalf of a community group at Tucki, objecting to the proposed • Advice to a koala advocacy expansion of a sandstone quarry, group regarding its proposed as well an advice responding to submission on the Part 3A Council’s legal advice on variation Blakebrook Quarry application from the DCP provisions on • Letter to Minister for Lands buffers. The Council refused the highlighting a potential breach of expansion. Arising out of this the Crown Lands Act 1989 resulting and other matters, Council also from plans by Council to build a commissioned an independent car park on Crown Reserve at inquiry into its development Brighton Le Sands. Subsequently, assessment processes the Department of Lands wrote • Advice to a resident about the to the Council recommending that permissibility of a purported the proposal not proceed, and ‘ancillary’ gravel screening that a new plan of management works on a fl ood zone be prepared in the public interest • Ongoing assistance to a local action • Ongoing advice to a Northern Environmental Planning and Development and Planning Environmental group on the Iron Cove Bridge Rivers community group on the upgrade, including FOI assistance proposed Rally in the Kyogle & and advice as to whether the RTA Tweed Shires covering road provided misleading information on closures, FOI and planning the time savings from the upgrade • Advice to a Turramurra group on • Advice to a resident on illegal barge the draft LEP for the Town Centre activities at Little Wobby Beach in Ku-ring-gai, addressing concerns about the Panel deciding the • Advice to a community matter; lack of proper consultation, group regarding the Saltwater lack of detail in the proposal development at South West and impacts on biodiversity Rocks, including the effect of

44 EDO ANNUAL REPORT 2008-2009 • Advice to a community association environmental zones where about issues with environmental more thorough assessment is protection in the new Shoalhaven needed, as well as the need to LEP process and how they can monitor cumulative impacts best protect Lake Wollumboola of complying development • Letters to the Ministers for • A brief paper on the key elements the Environment and Planning of a good planning system, the highlighting defi ciencies in the reforms needed and a critique planning framework in relation of recent reform processes to ESD and climate change in • A letter to the Planning Minister light of the Walker decision highlighting our concerns Policy and Law Reform with changes to the Heritage The planning system in NSW Act 1977, including requiring continued to undergo signifi cant the Minister to consider the reform in the past 12 months. economic consequences of The EDO participates with listing a place on the state other stakeholders in regular heritage register prior to listing Implementation Advisory • Appearing before the Legislative Committee meetings chaired by Council Standing Committee the Planning Minister and also on State Development to meets regularly with the Director discuss our submission on the General (with the Total Environment implications of the Council of Centre) on current issues. Australian Governments (COAG) During the past 12 months, the EDO reform agenda for planning in undertook work on the following: NSW, climate change and natural resource issues in planning and • A submission and meetings on development controls, and the proposed SEPP (Repeal the duplication of processes of Concurrence and Referral under relevant Commonwealth Provisions) 2008, which identifi ed and NSW legislation

key environmental areas Development and Planning Environmental where concurrence needs to Programs be retained. The Department The following program activities has decided to keep the addressing environmental environmental SEPP and DECC planning and development took concurrences in the new policy place during 2008-2009: • A submission on the NSW draft Workshops Complying Development Codes, Nine planning workshops were held which argued that complying throughout the year, with a clear development must only apply emphasis on explaining the recent to minor variations/renovations changes at workshops in Sutherland, and not, for example, to sensitive

EDO ANNUAL REPORT 2008-2009 45 Mosman, Coffs Harbour, Ballina, • “Planning Law” (Lecture Port Macquarie and Murwillumbah. to Architecture students, A series of workshops were also University of Sydney, 2 April held on Coastal Development, 2009, Amelia Thorpe ) LEPs and Advocacy at Ourimbah, • “Environmental Impact Assessment Narooma and Wollongong. in NSW” (Lecture at the Presentations University of New South Wales, School of Biological Sciences, EDO staff also spoke at a number 5 May, 2009, Tom Holden) of external forums on planning law, primarily to explain and refl ect on Papers recent Court decisions and the • Ghanem R (2008) “Amendments planning reforms. These included: to the NSW planning system • “Coastal Councils Planning for – sidelining the community” Climate Change” (National 14(2) Local Government Law Coastal Conference, 21 August Journal at pp 140-149 2008, Robert Ghanem, joint • Hallinan J (2009) “The Downward presentation with Sydney Spiral of Environmental Coastal Council Group) Assessment in New South • “To what extent does the NSW Wales: Part 3A and the Sandon planning framework promote Point Case” in Bonyhady T and sustainable best practice?” McIntosh A (eds) Mines, Mills (Rothworks Conference, 4 and Other Controversies: the September 2008, Amelia Environmental Assessment of Thorpe and Josie Walker) Major Projects Federation Press • “Recent court rulings that impact (forthcoming in late 2009) on marinas” (Marinas - Coming • Ratcliff I (2009) “Planning to a Shoreline Near You? Seminar Controls” section in Environment NSW Maritime Panel, Engineers Chapter of Law Handbook, Australia and PIANC Australia, 15 RLC Publishing, Redfern Environmental Planning and Development and Planning Environmental September 2008, Kirsty Ruddock) • Thorpe A and Graham K (2009) • “Are We There Yet? The Absence “Green buildings - are codes, of the Essential Element” standards and targets suffi cient (Environmental Planning and Law drivers of sustainability in NSW?” Association Conference, 17-18 in Environmental Planning and Law October 2008, Sue Higginson) Journal (accepted for publication • “A Great Planning Debate: that the in forthcoming edition) NSW Planning Reforms Cannot Possibly Work - Arguments for the Affi rmative” (Legalwise seminars, 19 November 2008, Kirsty Ruddock)

46 EDO ANNUAL REPORT 2008-2009 threatened fauna species would Biodiversity suffer a loss of habitat as a result of the planned development under Conservation the Growth Centres SEPP. In July 2008, the government passed Casework special legislation – the Threatened Species Conservation (Special True Conservation Association Provisions) Act 2008 – to confer Inc v Minister Administering biodiversity certifi cation on the area the Threatened Species within the Growth Centres SEPP Conservation Act 1995 covered by the original order, making In these proceedings the Association the Court proceedings futile. sought to challenge a decision by Conservation of North Ocean the Minister to grant biodiversity Shores Inc v Byron Shire Council certifi cation to State Environmental Planning Policy (Sydney Region Growth & Ors [2009] NSWLEC 69 Centres) 2006 (Growth Centres SEPP). In this matter, the EDO successfully The effect of biodiversity certifi cation represented the Conservation is that species impact statements no of North Ocean Shores Inc in Biodiversity Conservation longer need to be carried out for its challenge to a development individual development applications consent for the Splendour in in the area covered by the Growth the Grass Music Festival. Centres SEPP. Biodiversity certifi cation The Chief Judge of the Land is a process whereby up-front planning and Environment Court found for threatened species protection is that Council acted outside of its intended to take the place of site-by- power when it granted consent to site assessments. The Minister cannot Splendour in the Grass to hold a grant biodiversity certifi cation unless music festival on high conservation she is satisfi ed that the SEPP will value lands north of Byron Bay. lead to the overall improvement or maintenance of biodiversity values. A signifi cant part of the subject land was zoned for habitat protection The Association believed that, in under the Local Environmental this case, biodiversity certifi cation Plan. The Court found that the was granted prematurely and development was properly based on inadequate information. characterised as a temporary place The plan would result in the of assembly which is a prohibited clearing of 1,856 ha of some of use in the habitat zone. the rarest vegetation communities in the State. Approximately 16 The habitat zoning on the land threatened plant species and 22 was put in place after a detailed

EDO ANNUAL REPORT 2008-2009 47 Commission of Inquiry in 1998 that Sweetwater Action Group v had before it scientifi c evidence Minister for Planning & Ors of the signifi cance of the wildlife The Minister for Planning recently corridor on the land. The corridor is a approved the concept plan for the regionally signifi cant wildlife corridor new Huntlee Town Centre in the linking coastal ecosystems to world Lower Hunter. The Concept Plan heritage hinterland ecosystems. approval is to facilitate an area to The development would have seen house over 20,000 people near substantial earth works on the land Branxton despite the site being to accommodate the music festival ranked last under the Department including a 25 metre wide tunnel of Planning’s assessment of 91 excavated through the wildlife possible development sites in corridor requiring the removal of the Lower Hunter Valley. native vegetation and wildlife habitats. The EDO is acting for the Sweetwater Nambucca Valley Conservation Action Group Incorporated Association Inc v Nambucca (SWAG) a group of concerned Shire Council & Anor residents who are challenging On behalf of the Nambucca Valley the Concept Plan approval and Biodiversity Conservation Conservation Association Inc, the related rezoning of the site. EDO has commenced proceedings The site is one of only a few places in the Land and Environment Court where the critically endangered plant, challenging the decision of Council to Persoonia paucifl ora is found. SWAG allow a rural residential development is concerned that the Minister has to proceed in core koala habitat. not considered the precautionary The Association is challenging the principle and biodiversity in assessing decision on a number of grounds, the development. There are also including the signifi cant impact concerns about the appropriateness on threatened species (including of locating a large new population in the koala) and an endangered an area that is not well serviced by ecological community; failure public transport or other facilities. to consider provisions of the The case will raise similar issues Nambucca Local Environmental to those raised in the Catherine Plan; failure to properly exhibit the Hill Bay/Gwandalan case. In 2006 proposal after it was amended; and a Memorandum of Understanding improper deferral of environmental (MOU) was signed between Hardie considerations by the Council. Holdings (of which Huntlee Holdings The matter is set down for is an affi liate) and the Minister for hearing in August 2009. Planning under which the Minister agreed to facilitate development of

48 EDO ANNUAL REPORT 2008-2009 the Branxton site for residential and Creek dam approvals which are commercial purposes. In exchange, impacting on threatened species Hardie Holdings is to dedicate 876 • Advice to a resident on a proposal hectares of land for a conservation by Council to attempt to relocate reserve. The grounds for the challenge threatened fl ying foxes at Singleton are apprehended bias, taking into account irrelevant considerations and • Advice to a regional group the failure to consider ecologically regarding a developer appeal sustainable development (including against Council’s deemed refusal for the fundamental principle of the Splendour in the Grass Festival biodiversity conservation). • Advice to a community group The matter is listed for on assessments under the EPBC hearing in October 2009. Act 1999 in relation to the redevelopment at the Australian Legal and Technical Advice Institute of Police Management The EDO has provided the site at North Head and impacts following advice this year, including: on biodiversity, particularly little penguin habitat. Consequently, • Advice to a NSW environmental

the development footprint was Biodiversity Conservation group on the proposed changes signifi cantly reduced for the college to the shark meshing program • Letter to the Minister for • Advice to a State-wide group on the Environment on behalf leases in national parks including: of a community group about > assessment of positive and subdivision and impacts on negative characteristics, and endangered Macquarie perch > best practice for leases to in the Mongarlowe River protect biodiversity and • Ongoing advice to a resident public values of national parks regarding the enforcement of Iron where areas in parks are Gates remediation orders, including leased for private purposes the capacity to join proceedings, • Ongoing assistance to residents and letters to solicitors for Iron on Lord Howe Island on rat Gates (in liquidation) and to the eradication strategies and liquidator, requesting further action associated risks to biodiversity to remediate the Iron Gates site in accordance with the Court Orders • Interim advice to a regional environmental group about • Advice and brief to Counsel to prospects of compliance action in advise a residents association relation to breaches of Shannon on challenging the approval of a DA for a 27 lot subdivision on

EDO ANNUAL REPORT 2008-2009 49 Wadalba Hill, based on Council’s the application. The EDO failure to consider the signifi cant understands that the Council biodiversity and Aboriginal cultural accepted the correctness of heritage values of the site. The the EDO’s representations Scientifi c Advisory Service has • Letter to DECC regarding a also provided ongoing assistance Council’s proposed redevelopment in this matter, including a review of a site with threatened species of environmental assessment habitat, submitting that Council’s documents and a site visit to proposal was inconsistent assess the merits of the deemed with DECC’s recovery plans. concurrence by the Department of Consequently, DECC made a Environment and Climate Change submission to Council on the • Ongoing assistance to a national concept plan after receipt of group on fl ying fox issues our letter and Council adopted • Series of advices, including DECC’s recommendations in brief to Counsel, for a State- relation to further consultation and wide environmental group threatened species assessment for on proposed changes to the future development applications Biodiversity Conservation National Parks and Wildlife Act • Provision of a Model Covenant to 1974 to facilitate tourism a national group for conservation • Advice to a peak regional agreements around Australia environmental group regarding • Advice to a NSW-wide a submission on the North conservation group on Shore Quarry DA, including legislative options for protection potential impacts on Green and better management of & Golden Bell Frog habitat travelling stock reserves • Review of ecological assessment • Advice to a local group, including documents, attendance at the fi rst the review of ecological assessment hearing of an advisory PAC, and documents and the preparation preparation of a submission to of an expert brief on a proposal Department of Planning on impacts for clearing an endangered of the Metropolitan coal project ecological community for a private on Prickly Bush-pea, a threatened college at Kurri Kurri, which species dominant at the site is also habitat for the highly • Letter to Council stating that endangered Regent Honeyeater a Koala Plan of Management • Advice to client on the ADI St was required for a residential Mary’s site, including implications development application before of changes to the SEPP relating to Council could determine this site, and on how to provide

50 EDO ANNUAL REPORT 2008-2009 statutory protection for land which the DA and advised it will be community groups want protected resubmitted with a design that as part of the Cumberland considers koala impacts Conservation Corridor Proposal • Advice to a national climate group • Submission on behalf of koala on World Heritage in Danger listing advocacy group on the impacts for Wet Tropics World Heritage of the expansion of a caravan area and whether that would park on koalas at Evans Head, affect the listing of cultural values including input obtained • Advice to NSW-based Aboriginal from an expert ecologist group on the proposed • Comprehensive advice to a Biodiversity Strategy NSW-based Aboriginal group on • Letter to Railcorp and meeting the implications of BioBanking with contractor and community for Indigenous groups group covering remediation of • Advice to a resident group damage to biodiversity and Duck regarding a proposed kennel River from works conducted on at Coffs Harbour on the edge the Railcorp site near Granville

of core koala habitat, including • Advice to a resident on the need Biodiversity Conservation possible grounds to refuse/ for Council to consider a newly review development consent listed endangered ecological • Preparation of letters for a community when considering community group at Berowra an application for review under Creek to the Department of the EP&A Act 1979; and what Education and Training and the amounts to a ‘signifi cant impact’ Department of Environment under the EPBC Act 1999 and Climate Change about • Series of advices to a resident on damage to an Endangered an agreement with the Nature Ecological Community Conservation Trust to protect a at John Purchase School, property in the Capertee Valley Cherrybrook, by contractors • Advice to, and meeting with, a • Advice to a NSW environmental Morpeth-based conservation group group on the closure of to discuss private conservation a NSW shark fi shery and different types of covenants • Letter to Council, indicating that • Legal and scientifi c assistance, a development consent for a review of environmental rugby club had not considered assessment documents and expert SEPP 44 regarding koalas. advice to an environment group Council subsequently ‘withdrew’ at Ryde, in lodging complaints

EDO ANNUAL REPORT 2008-2009 51 with DECC and DEHWA in to defend the environment in relation to clearing of Sydney this and many other ways; Ironbark Turpentine Forest, an As Convenor of REG, please endangered ecological community, also accept my deep personal at the Macquarie Hospital site. appreciation of the help by DECC responded to our report you and your staff this year; with a site visit in four hours, and DEHWA with a written response • Advice to a resident regarding within 24 hours. In a letter to a rescission motion and an the EDO, the group stated: EPBC Act 1999 referral with respect to a proposed residential Ms Johnson responded without development at Patch’s Beach hesitation to our urgent plea for help, making immediate • Advice to a resident regarding representations for a stop the requirement for Council to work order to both the State independently assess the need and Federal Environment for a species impact statement; Ministers and following up and Council’s ability to refer a with the relevant agencies… controlled action to the Federal

Biodiversity Conservation The EDO [also] through Mr Minister for the Environment Tom Holden, assisted us to • Meeting with the Federal obtain an independent expert Environment Minister on behalf of ecologist’s report that confi rms local resident re concerns about the presence of remaining operation of EPBC Act 1999 and endangered Sydney Ironbark the Minister’s role in Botany area Turpentine Forest. We are • Policy and technical advice to presently taking action to press DECC on aspects of Biobanking the Council and the NSW that should be monitored over and Federal Governments the 2 year trial period to ensure that the remaining community is managed • Advice regarding a potential properly and that offsets are dam case in Queensland, including given for the damage done; teleconferences, review of documents and identifi cation of experts There is no doubt that the EDO has responded quickly • Submission to the Minister on to our needs as a community the signifi cance of the impacts of a environment group in every way proposed rezoning and residential it possibly could and we feel that subdivision at Jervis Bay on Matters of it is vital that the EDO continue National Environmental Signifi cance to be able meet its charter and Commonwealth Land (Booderee National Park) based on a review

52 EDO ANNUAL REPORT 2008-2009 of environmental assessment months, the EDO completed a lengthy documents. The rezoning had to be multi-disciplinary Discussion Paper referred to the Federal Environment and held a Roundtable to canvass Minister for approval under the the issues raised. The Roundtable EPBC Act 1999, because it was going was attended by a number of to impact the National Park and scientifi c and legal experts including federally listed threatened species. Judy Lambert (Facilitator), David The submission argued that approving Farrier (Wollongong University), the rezoning was inconsistent with Jan McDonald (Griffi th University), the EPBC Act 1999, and Australia’s Gerry Bates (Sydney University/ international obligations under it. ANU), Michael Dunlop (CSIRO), The Minister refused approval of Simon Ferrier (CSIRO), Tony the rezoning, with our submission Auld (DECC) and Martin Fallding being quoted a number of times in (consultant). Other experts who the recommendation report from agreed to review the paper included DEHWA to the Minister, which Paul Adam (University of NSW), recommended refusal of the rezoning Chris Dickman (University of Sydney), • Policy advice regarding the David Keith (DECC), Brendan Wintle

Signifi cant Impact Guidelines under (University of Melbourne), Sarah Biodiversity Conservation an EBPC Act Policy Statement Bekessey (RMIT), Hugh Possingham (University of Queensland) and Lesley • Review of environmental Hughes (Macquarie University). assessment documents and advice regarding the Federal The Discussion Paper was Environment Minister’s reasons presented to the independent for the decision to approve a panel reviewing the EPBC Act development at Catherine Hill Bay 1999, the NSW Government, and the NSW Legislative Assembly Policy and Law Reform Inquiry into Managing Climate Climate Change and Biodiversity Change Impacts on Biodiversity. It is available on the EDO website. Climate change will have profound impacts on biodiversity, and there is The EDO also made a short an abiding need to re-evaluate our submission on the draft National current approach to conservation. Biodiversity Strategy to the The EDO has done considerable Department of Environment, Heritage, work in this area, with particular Water and the Arts. The submission emphasis on whether the current outlined that the Strategy should be legislative frameworks in NSW and given greater force and used as a tool at the Commonwealth level can to discuss biodiversity priorities in facilitate adaptation. In the last 12 the context of both the challenges of

EDO ANNUAL REPORT 2008-2009 53 climate change and the independent partnerships and community support. review of the EPBC Act 1999. Importantly also, ANEDO was Protected Areas Management pleased to see that the fi nal Strategy – released in May 2009 - put greater The management of protected areas emphasis on two key issues raised is a cornerstone of the Australian in our submission; namely, greater Government’s efforts to protect recognition that adaptive management Australia’s unique biodiversity and will be crucial under climate implement its international obligations change, and greater recognition of under the Convention on Biological the value of the knowledge held Diversity 1992 (CBD). Article 8 by Indigenous communities and of the Convention specifi cally private landholders in protected requires parties to establish a area planning and management. system of protected areas where special measures need to be taken EPBC Act 1999 to conserve biological diversity. In late 2008 the Federal Minister In the past year, the EDO wrote a for the Environment, Heritage submission to the NSW National and the Arts commissioned an Parks and Tourism Inquiry (run independent panel to review the

Biodiversity Conservation EPBC Act 1999, by the Department of Tourism) the fi rst review raising concerns about facilitating since it commenced in 2000. inappropriate tourism in national The review has been wide-ranging, parks. The EDO also responded to the covering the following areas: proposed National Parks and Wildlife • Scope of the Act Regulation 2009. The main concern was to ensure that the Regulations • Assessments and Approvals maintain important environmental • Biodiversity safeguards and adequately facilitate • International Movement of Wildlife Indigenous access and engagement. • Protected Areas At a Federal level, ANEDO also prepared a submission, with signifi cant • Indigenous Involvement input from the Scientifi c Advisory • Compliance and Enforcement, and Service, on the Consultation Draft for Australia’s Strategy for the • Decision-making under the Act National Reserve System 2008-2030. ANEDO has been actively involved ANEDO supported the key directions in this iterative process over the under the strategic themes for the past year, making a comprehensive National Reserve System which initial submission, meeting with the include protected areas design and independent panel on two occasions selection, protected area planning to discuss matters arising from the and management and strengthening submissions and the review process

54 EDO ANNUAL REPORT 2008-2009 and making a submission on the Biocertifi cation Interim Report. Further comments Under the Threatened Species have been provided on request Conservation Act 1995 the from the panel on issues including Environment Minister may make strategic assessments, prioritisation, an order conferring “biodiversity listing processes, bilateral agreements, certifi cation” (biocertifi cation) on an standing and the scope of merits Environmental Planning Instrument. review. The discussion paper prepared In order to do this, the Minister must on Climate Change and Biodiversity be satisfi ed that the plan, in addition was also presented to the panel. to any other relevant measures In the panel’s Interim Report, ANEDO to be taken into account, will lead submissions are referenced extensively, to the overall improvement or with around 70 references. For maintenance of biodiversity values. example, our submission relating to The effect of biocertifi cation is to s516A of the Act (on ESD reporting remove the need for a Species by Commonwealth agencies) is Impact Statement and DECC discussed in great detail and some of approval for developments under our recommendations are endorsed. the plan. All developments which are permissible under a biocertifi ed plan The review process has highlighted Biodiversity Conservation the benefi ts of a multi-disciplinary are deemed not to have a signifi cant approach with the policy, science impact on threatened species, and litigation teams in NSW working regardless of their actual impacts. closely with all other EDO offi ces As noted above, the True around Australia, as well as liaising Conservation Alliance, represented with the major conservation groups. by the Environmental Defender’s Running concurrently with this Offi ce, launched a legal challenge review process has been an Inquiry to the Minister’s decision to grant by the Senate Standing Committee biocertifi cation to the Growth on Environment, Communications Centres SEPP in February 2008 – the and the Arts. ANEDO prepared a fi rst use of the biocertifi cation power. submission to, and appeared before, The case was due to be heard in July the Senate Committee. In its fi rst 2008. Prior to its commencement, the report, the Senate Committee made Government passed the Threatened ten recommendations consistent Species Conservation Amendment with ANEDO recommendations, (Special Provisions) Act 2008, which with ANEDO being mentioned overrode the legal challenge. 26 times in the report. In response, the EDO consulted with conservation groups and the policy, science and litigation teams prepared a paper outlining the legislative changes needed to the

EDO ANNUAL REPORT 2008-2009 55 biocertifi cation process to improve Sydney law School CLE, 17 it and to better operationalise November 2008, Tom Holden). the ‘maintain or improve’ test. • “Introduction, Overview and The paper has been presented Case Studies on the Lismore LEP” to, and discussed with, DECC. (Lismore LEP Biodiversity Forum, Programs 4 December 2008, Mark Byrne, Ian Ratcliff and Sue Higginson) The following program activities addressing biodiversity conservation • “Biodiversity Law” (Interview took place during 2008-2009: recorded for SCU Science School for external education materials, Workshops 6 April 2009, Sue Higginson) The EDO held four workshops • “Biodiversity Law” (Lecture to relating to biodiversity conservation SCU School of Law and Justice, in 2008-2009. In collaboration with 27 April 2009, Sue Higginson) the Tucki Landcare Group, the EDO held a workshop on Conserving • “Biodiversity protection Threatened Species at Goonellabah through the Standard LEP” in September 2008. The EDO also (Lismore Council, 16 June

Biodiversity Conservation hosted a Biodiversity Forum in 2009, Sue Higginson) Lismore in November 2008. Two EDO Papers workshops on private conservation were also held in Grafton and • Smith J (2008) “How Adaptable Murwillumbah, with speakers from Are Our Conservation Regimes?” government, Councils, Land for in Bonyhady T, McDonald J and Wildlife, the Nature Conservation McIntosh A (eds) Adapting to Trust and the CMA also contributing. Climate Change: Australian Law and Policy Federation Press Presentations (forthcoming in late 2009) • “Biobanking, Biocertifi cation and • Walker J and Walmsley R Native Vegetation” (Lectures to (2008) “Biobanking: Certainty UNSW Law Students, September for Developers and New 2008, Rachel Walmsley) Hope for Threatened Species” • “Community Expectations of an 46(8) Law Society Journal Ecological Consultant” (Ecological (September 2008) at pp 52-55 Consultant’s Association Annual Conference, 5 September 2008, Tom Holden and Rachel Walmsley) • “BioBanking and the BioBanking Assessment Methodology” (Australian Centre for Climate and Environmental Law and

56 EDO ANNUAL REPORT 2008-2009 Land and Environment Court Natural Resource challenging Council’s refusal. Management As the proposal was designated development, EPO joined the proceedings and raised a number of Casework environmental matters that Council was not raising in its case. The main Tomsys Timbers Pty Ltd v arguments put to the Court by Clarence Valley Council & Elland EPO, backed by expert advice, were Preservation Organisation Inc that the proposal would have an Tomsys Timbers wanted unacceptable impact on water quality to place a major sawmill and cause water pollution and it development and operation on would adversely affect threatened environmentally signifi cant rural species. Further, it was argued that land in the Clarence Valley. the Environmental Impact Statement In this successful case, the EDO prepared by the proponent was Northern Rivers acted for the substantially inadequate and did not Elland Preservation Organisation Inc comply with statutory requirements. (EPO). EPO was concerned about After the EPO fi led its expert the impacts of a proposed major evidence in the matter, Tomsys sawmill development on the natural Timbers sought to discontinue rural environment. The proposed the proceedings. The matter was Management Natural Resource development was on environmentally settled on the basis that Tomsys constrained land and at the top of pay the costs incurred to date. a water course that feeds directly North Coast Environment into a signifi cant wetland before Council Inc v Department feeding into the Orara River. of Environment and Council refused the development Climate Change application lodged by Tomsys Timbers The EDO (through the Northern (the sawmill company) on three Rivers Offi ce) acted for the separate occasions on a number of North Coast Environment legal and environmental grounds. Council Inc (NCEC) in this matter, Further, Council has a sustainability which ended successfully. initiative and Industrial Lands Strategy that when applied concludes that this The NCEC fi led an application type of major industrial development in the NSW Administrative should only be considered on lands Decisions Tribunal challenging the appropriately zoned industrial. decision of the Department of Tomsys Timbers appealed to the Environment and Climate Change (DECC) to refuse NCEC access

EDO ANNUAL REPORT 2008-2009 57 to information it holds regarding Blue Mountains Conservation logging approvals on private land. Society Inc v Delta Electricity The NCEC lodged a Freedom In June 2009, on behalf of the Blue of Information Application with Mountains Conservation Society, the DECC seeking information on EDO commenced civil enforcement private logging operations in NSW. proceedings in the NSW Land and The NCEC sought the information Environment Court against Delta in order to independently assess Electricity under the Protection of the how the relatively new system of Environment Operations Act 1997, for regulation over logging on private causing water pollution. Water quality lands in NSW was being applied. testing results from upstream and DECC refused access, claiming that downstream of a discharge point from the material sought contains the Wallerawang Power Station, as well as business affairs and personal affairs from the discharge point itself indicate of the landholders. DECC also said that the power station is introducing that landholders may be subject salts and metals into a river which to trespass, property damage and runs into Sydney’s drinking water blockades if the material is released. supply. The enforcement authorities NCEC believed that DECC did not have been advised of the results but apply the Act in accordance with the have so far not done anything about it. law and that in the public interest the The Scientifi c Advisory Service has

Natural Resource Management Natural Resource information sought should be released. played a formative role in this case, Five landholders that conduct private through ongoing advice, meetings logging operations on their land with clients, site visits, data analysis joined the proceedings. They claimed and engaging and briefi ng experts. that their property and commercial As the client has indicated that it interests would be adversely affected could not afford to continue with if the information held by DECC the proceedings unless its liability was released. No evidence to was limited, the EDO is seeking a back up or provide any substance ‘protective costs order’, which caps to such claims put by DECC or the costs payable on a party/party the landholders was provided. basis in the proceedings. This issue is Prior to hearing, DECC agreed set down for hearing in August 2009. to release the documents to the Barrick Australia Ltd v NCEC and the matter was settled Williams [2009] NSWCA 275 by way of consent orders. The EDO is acting for Neville “Chappie” Williams, defending an appeal by mining company Barrick Australia Limited from judgment

58 EDO ANNUAL REPORT 2008-2009 delivered by Justice Biscoe in the resources – specifi cally, water, mining, Land and Environment Court. land and forestry. These include: The case concerns an application by Water Barrick to signifi cantly expand and • Advice to a NSW-based intensify its mining operations at Lake Aboriginal group on the NSW Cowal, including an increase in the Wetlands Policy and issues that mine’s operational life by 11 years. may concern Indigenous people Mr Williams is a Wiradjuri Traditional Owner, custodian and native title • Review of EIA documents for a claimant in respect of the land and proposal to construct Wellington waters on which the Cowal Gold Weir at the end of the Murray Mine is located. The mine has been River in South Australia, and liaison the subject of intense and ongoing with members of the Expert community concern since its inception. Register to identify relevant experts who could assist in preparing In the Land and Environment Court, a submission on the project Justice Biscoe held that Barrick’s application to ‘modify’ the existing • Advice to a Hunter-based group mine approval in fact proposed a on the potential for a legal ‘radical transformation’ of the Cowal challenge to the declaration Gold Mine. As such, the Court held of the Tillegra Dam as “critical that the application did not constitute infrastructure” under Part 3A a modifi cation request for the • Letter seeking copyright Management Natural Resource purposes of Part 3A of the EP&A Act information on behalf of a regional 1979. The Court also made fi ndings group about the release of a against the validity of decisions made Snowy Scientifi c Committee report (or to be made) by the Director- and publication on their website General of the Department of before its formal release, as well Planning and the Minister for Planning as advice on the fi ndings of the which relate to Barrick’s application. Committee and the licence review This matter is set down to • Advice to a community be heard by the Court of group on the Snowy Water Appeal on 1 July 2009. licence and environmental fl ows in the Snowy River Legal and Technical Advice Around two-thirds of all legal • Ongoing advice to community inquiries to the EDO are from rural associations, including an FOI and regional NSW. Many of these application, a brief to Counsel inquiries relate to issues around about what action could be the management of our natural taken to enforce breaches of the water laws and the Paroo

EDO ANNUAL REPORT 2008-2009 59 River moratorium, and the • Policy advice on recent review of an expert report amendments to the Mining Act 1992 to overcome the Ulan Mining decision in the Court of Appeal • Ongoing advice to residents on • Ongoing advice and meetings with the Anvil Hill/Mangoola Coal Mine, a regional environment group to including nuisance, modifi cation discuss an advice on Wilpinjong issues, consultation requirements, mine, including advice on breaches brief to Counsel, meetings and of development consent in correspondence with the mining relation to noise, lodging an FOI company regarding noise mitigation application and a letter to the and research on the impacts of Department requesting action dust, groundwater and light • Advice to a community action • Advice to a national conservation group on the procedures group on who is legally responsible for granting exploration for management of tailings from licences at Wybong the Ranger Uranium Mine • Conference to discuss • Advice to a residents association possible EDO NSW support regarding breaches of condition for the Olympic Dam EIS, by Broula King mine the largest proposed mining • Advice on the expansion of project in Australia

Natural Resource Management Natural Resource Northparks mine, covering the • Advice to a community group on magnitude of the expansion and an auger mining proposal in Lake the associated increase in water Macquarie and whether it could use and potential impact on be classifi ed as open cut mining other water users in the region • Review of EIA documents for East • Advice to a community group in Quarry, Hunter Valley and meeting Wollombi on potential challenges with the client to discuss how the to a determination under Part 5 EDO could assist on their matter of the EP&A Act 1979 in relation and to provide general advice on to the Review of Environmental how to proceed with a submission Factors for test drilling Land and Native Vegetation • Ongoing assistance with regard to a sandmine in the World Heritage • Advice to a resident group at Area in the Blue Mountains. Invergowrie on a modifi cation Council refused the DA due to removing native vegetation non-compliance with a condition from an endangered ecological of the original consent. The consent community listing. As the client said: has lapsed and Council is now unable to consider the application

60 EDO ANNUAL REPORT 2008-2009 The EDO enabled the Forestry community to focus its attention • Advice to a large regional to the specifi c areas we legally group on potential Private could address...The EDO Native Forestry Bill initiatives negotiated an extension of time allowing a well attended • Advice to a regional environmental community meeting to be group regarding public consultation held and a group submission rights, failure to consider key to Council to be prepared threatening processes, failure to take account of unmapped • Ongoing advice to a landholder, gullies and inadequate frog/bat including letters to the State surveys in relation to a logging Council of the Rural Lands proposal at Clouds Creek Protection Board, on fencing and trespass issues regarding a • Advice regarding proposed Travelling Stock Route (where an re-logging, including engaging an Envirofund project is in place) expert to review the environmental assessment of logging in a steep • Advice to a local action group compartment at Nambucca, as to whether the Hub Action the analysis and interpretation Group v Minister case could of the advice, and a letter to be used to compel Council Forests NSW outlining concerns not to zone prime agricultural regarding soil assessment and land as an Industrial Area analysis that has been undertaken Management Natural Resource • Submission to Council, based • Informal briefi ng provided to a on review by an expert, raising parliamentarian on regulation concerns with the lack of of timber plantations information provided in reports on stormwater management • Advice to a NSW environmental and leachate management at organisation regarding legality of a landfi ll site, and highlighting River Red Gum logging without EIS/ client concerns with the impacts Part 3A approval, notwithstanding of the tip on Wolumla Creek previous undertakings in and wetlands on the site accordance with Court settlement • Advice to a state-based group • Advice on the meaning of on defi nitions under the “public interest” under the Native Vegetation Act 2003 Forestry Act 1916 and other and regrowth as it relates contexts under Part 3A to bushfi re management • Letter to the Department of • Review of documents and Primary Industries seeking access to test results relating to waste information that should have been storage at Quirindi tip publicly available in relation to a

EDO ANNUAL REPORT 2008-2009 61 pine plantation, as well as querying More recently, the focus has shifted why no species impact statement to ensuring that the laws are properly was provided prior to the Minister enforced and complied with. In authorising the plantation. As a the past year, the EDO met with result of our correspondence, the senior DECC offi cers to discuss our information was provided to the concerns over lack of enforcement client. In addition, the owners of as well as commenting on the Draft the pine plantation met with the Native Vegetation Compliance and client and agreed to avoid putting Enforcement Policy and proposed the pine plantation on ecologically changes to the Assessment sensitive areas on the site Methodology that underpins the laws. • Advice on the potential impacts Furthermore, the EDO was of coal seam gas extraction commissioned to provide an overview on groundwater levels of best-practice native vegetation • Review of documents prepared by laws in NSW and Queensland for the a client regarding alleged misleading EDO in the Northern Territory and ecological reports, which assessed a major conservation organisation. the impacts of mine subsidence The Northern Territory Government recently committed to an overhaul of • Advice to a client on the technical landclearing regulation in the Territory, aspects of a development including a new Native Vegetation Act application by Walferton tannery and caps on total clearing, in line with

Natural Resource Management Natural Resource to treat effl uent at a disused recommendations made by the EDO. abattoir and irrigate treated effl uent at a tannery at Aberdeen Water • Engaged an expert and reviewed Water management in Australia client submission to Hunter continues to go through a signifi cant Water, regarding the ecological reform process, with a much greater impacts of treated effl uent being role for the Commonwealth in more discharged to Congewai Creek recent years. At the Federal level, under the Paxton Wastewater ANEDO made submissions to the Treatment Plant upgrade Senate Standing Committee on Rural and Regional Affairs and Transport Policy and Law Reform on changes to the Water Act (CTH) Native Vegetation 2007 as well as water management in the Lower Lakes and Coorong. The For some years, the EDO has been EDO also made a submission on the active in developing the legislative Draft NSW Floodplain Harvesting framework for the native vegetation Policy (with signifi cant expert laws in NSW, namely, the Native input from our Technical Advisory Vegetation Act 2003 and the Native Panel) as well as providing advice Vegetation Regulation 2005.

62 EDO ANNUAL REPORT 2008-2009 regarding the Water Management Law (Wanaaring, Broken Hill and Amendment Bill 2008 on provisions Albury), Rural Environmental Law relating to ‘severe water shortage’. (Albury, Griffi th and Uralla) Forestry Forests and the Public Trust (Narooma) and the Snowy River (Bombala). Forestry remains a concern for many EDO clients, and the issue Professor Rob Fowler also presented has gained additional importance in a seminar on “The Dying Murray: light of the emergence of climate Is There a Legal Cure?” in Sydney, change. During the year, the EDO: while the successful BrainFood in Byron seminar series attracted • was commissioned by a major infl uential speakers on issues national conservation group relating to Mining and Water. to provide drafting instructions for a Tropical Forests Act at the Papers Federal level (as noted above) • Ruddock K (2008) “Justice in • met with a number of the Northern Territory?” 7(2) conservation groups to discuss Indigenous Law Bulletin at pp 21-23 concerns with the current Presentations laws pertaining to plantations • “National and State Water Law and private native forestry for Local Practitioners” (Albury • prepared a submission on behalf CLE, 27 February 2009, Felicity of ANEDO on DEHWA’s Millner and Robert Ghanem) Natural Resource Management Natural Resource draft strategy for the National • “A Payment for Ecosystem Services Reserve System (2008-2030) Scheme in PNG: Incorporating • commented extensively on the Lessons from Costa Rica’s PSA” Regional Forestry Agreements (NZ CEL Conference, 18 April 2009, as part of its submission Amelia Thorpe and Kristy Graham) work and ongoing discussions • “The utility of a statutory duty with the independent panel of care for the environment reviewing the EPBC Act 1999. in place of further regulation Programs of farming activities” (Moot at UNE, Armidale, Ian Ratcliff) The following program activities addressing natural • “Native Vegetation & Water resource management took Management” (Hastings Landcare place during 2008-2009: Small Farms Workshop, Wauchope, 31 May 2009, Ian Ratcliff) Workshops and Seminars • “Illegal Tree Clearing” (Byron The EDO held 10 workshops on and Ballina Council, 26 June natural resource management during 2009, Sue Higginson) the past 12 months, covering Water

EDO ANNUAL REPORT 2008-2009 63 Minister for Planning (No Environmental 2) [2008] NSWLEC 272; Justice Anderson on behalf of Numbahjing Clan within the Bundjalung Nation v Director- General of the Department of Casework Environment and Climate Change Minister for Planning v Walker & Anor [2008] NSWLEC 299 (No 2) [2008] NSWCA 334 These two cases sought to test the In this matter regarding development new Land and Environment Court at Sandon Point, the EDO successfully Rule 4.2 allowing the Court to make argued against the usual costs order no order for costs if it is satisfi ed that – that is, the loser pays - on the basis the proceedings were brought in that the proceedings were brought the public interest. In both cases, the in the public interest. The Court Court accepted that the proceedings

Environmental Justice Environmental agreed, with the Court ordering were brought in the public interest. that each party pay its own costs. In the fi rst case, Justice Biscoe Anderson v Director General found that the new rules did not Department of Environment mandate special circumstances to and Climate Change justify a departure from the usual This was an appeal to the Court of rule. However, His Honour held that Appeal from a decision of Justice there were several circumstances Lloyd of the Land and Environment which weighed against departure Court, dismissing an application for from the usual rule as to costs, review of the decision to grant a and ordered the applicant to permit to destroy Aboriginal objects pay the respondent’s costs. on Lot 208, Angels Beach. The matter In the second case, Justice Lloyd has a long history, with the EDO being held that the new rules merely involved in several cases in the past. gave statutory recognition to the The appeal was based on the judgements in the High Court principle of intergenerational equity, case of Oshlack – namely, that the seeking to test the limits of the categorisation of proceedings as application of this principle to the public interest litigation is a relevant protection of Aboriginal cultural consideration in the exercise of heritage in NSW. The Court of the court’s discretion as to costs, Appeal dismissed the appeal. but it is not the only consideration. In holding that the usual order as Anderson on behalf of to costs should apply, His Honour Numbahjing Clan within drew attention to a number of the Bundjalung Nation v countervailing considerations. His

64 EDO ANNUAL REPORT 2008-2009 Honour ordered the applicant the Minister for Lands to notify the to pay the respondent’s costs. revocation of Crown Reserve at Taylor Lyall Munro & Wayne Nean Oval is void, and related injunctions. v Minister for Planning & The revocation of the dedication is an Moree Plains Shire Council; important step in allowing Lands to lease or otherwise deal with the land Lyall Munro & Wayne Nean to enable the Big W development v Minister for Lands to proceed. The Minister is also In these two related cases, the EDO is contesting the right of the elders to acting for two elders of the Gomeroi bring the proceedings, as the challenge nation in Moree. Both matters is based on the common law test of involve Taylor Oval, the main rugby whether they are “a person aggrieved” league and cricket ground in Moree, by the decision. A hearing date has which is a signifi cant site for the local been set for November 2009 at Aboriginal community who believe the Supreme Court in Sydney. it is situated near a burial ground for the Gomeroi nation. Bodies of Legal and Technical Advice Justice Environmental Aboriginal persons were excavated The EDO has provided the on the site in 1903. Taylor Oval has following advice this year, including: also been important for reconciliation Pollution and Public Health in the town as an area where both Aboriginal and non-Aboriginal people • Advice to residents in Mogo have mixed over the generations. about air and noise pollution in relation to their concerns The fi rst matter involves the approval with a bitumen mixing plant of a rezoning application for Taylor Oval from recreation to commercial • Letter to, and discussions with, use to facilitate the building of a Big Council urging action over a W department store on the site. polluting industry operating without The case focuses on whether the Council consent with impacts Minister for Planning and Council on a neighbour through noxious followed the correct procedures odours. Council has now issued for rezoning the land under the an order requiring the current use EP&A Act 1979. Proceedings were of the property to discontinue commenced in April 2009. • Oral advice and expert referral to Related proceedings have been a resident group at Breakfast Point commenced in the Supreme Court in relation to the requirements against the Minister for Lands’ decision to remediate contaminated to revoke the dedication of Taylor land in Sydney Harbour Oval for public purpose recreation. • Assistance to affected farmers In this case, the EDO is seeking a in relation to their concerns declaration that the decision by regarding pollution downstream

EDO ANNUAL REPORT 2008-2009 65 from Camden Sewerage Treatment and that an EIS was required. As Plant including referring clients a result, the DA was withdrawn to water quality experts to • Ongoing assistance to an assist with collection of samples environmental group on Norfolk and letter to Sydney Water Island on disposal of waste and • Ongoing assistance to a water contamination issues, community group on a Part 3A including the role of the EPBC application to build a marina, Act 1999, scientifi c assistance on residential apartments and dioxin levels and correspondence holiday accommodation on Lake with the Federal Minister for the Macquarie, including review of Environment and Norfolk Island documents and engaging an administration. In commenting on expert to assess issues regarding EDO assistance, the group said: the aquatic ecology and water The support and assistance has quality impacts of the marina been of great benefi t and has Environmental Justice Environmental component of the proposal provided [us] with an excellent • Advice to a residents action group resource, a clear understanding at Shalvey on enforcement issues of our rights on the island. • Policy advice on the legal We hope that we can in time options for banning fl uorescent make changes on the island lightglobes, batteries and other and it is with the support of hazardous materials from landfi ll the EDO that this will happen • Advice on contamination Aboriginal Cultural Heritage issues associated with a new and Indigenous Rights coal terminal in Newcastle • Advice to an Indigenous and clean up operations group on outsourcing of • Assistance to a client at Wyong management by Council of a to resolve a dispute with Council Lifestyle Academy Centre over the contamination of • Advice to Aboriginal elders about water tanks from roadworks an approved Cultural Heritage • Advice and draft correspondence Management Plan, including on public health issues to an writing a submission to DECC advocacy group in the Hunter raising concerns with its form • Letter on behalf of a resident • Letter to the Minister for association to the Council Environment and Climate advising that a development Change about cultural heritage application for the storage of reforms including issues that liquid industrial waste at Peak Hill arose in visit to Darug was a designated development

66 EDO ANNUAL REPORT 2008-2009 • Advice to an Indigenous group • Advice for a state-based group on discussions with large mining on cultural heritage issues and company in the Hunter Valley enforcement by DECC on cultural heritage issues • Advice for Traditional Owners • Advice for Traditional Owners on cultural heritage issues with on proposed expansion of mine consultation on consents to destroy in Central West regarding the Access to Justice, and Campaigner’s application of s75W of the EP&A Rights and Responsibilities Act 1979 and procedural fairness • Advice regarding the • Lodged an FOI request on status of amicus curiae behalf of an Indigenous group submissions in Australia on the management of a site in the Blue Mountains National • Letter to the NSW Committee Park, Kings Tableland on the Independent Commission Against Corruption supporting • Assistance to a resident on issues the establishment of a legal Justice Environmental relating to the Buladelah bypass framework to protect public • Advice on Fact Sheets prepared sector whistleblowers by a state-based Aboriginal • Lodged a review of an FOI organisation explaining decision not to allow access amendments to the NPW Act 1974 to documents on the basis the • Ongoing project management of investigation is ongoing based on Kutubu 2 matter in PNG, including: information to the contrary > liaison with consultants, Oil • Advice to protestors from Search, and client re alteration the Climate Camp about the to contract and fee agreement prospects of success of running > review of draft gap analysis a “reasonable excuse” defence report prepared by consultants in relation to trespass penalty notices under the Rail Safety > review of draft toxicology report (General) Regulation 2008 > liaison with consultants regarding • Lodged an FOI internal review and the adequacy of the report letter of review to Ombudsman > meeting with clients on behalf of community group seeking documents with respect > coordination of fi nal report to agency responses to proposed • Advice to an Aboriginal elder about residential subdivision at Dunoon a dispute with Council and the • Advice on potential liability marketing of cultural heritage tours for campaigning activities

EDO ANNUAL REPORT 2008-2009 67 • Assistance to an individual review their freedom of information in response to a conviction laws over the past 12 months. for intimidation for a logging In September 2008, the NSW protest near Moruya, including Ombudsman released a Discussion lodging an appeal against the Paper on the Freedom of Information decision in the Local Court Act 1989, which formed part of a • Series of advices to rowing clubs broader investigation by the Offi ce on whether the Iron Cove Bridge into the processes and procedures proposal interferes with public surrounding freedom of information rights of navigation and in particular in New South Wales. The EDO made the ability to challenge that a comprehensive submission to the decision through public nuisance Ombudsman on the objects and proceedings in the Supreme Court presumptions of the Act, the scope • Application for joinder in and use of exemptions, the use of proceedings before the ADT in Ministerial Certifi cates, fees and Environmental Justice Environmental which BHP are objecting to the charges and reviews. The EDO made release of certain documents which a number of key recommendations were sought in an FOI application on these issues that would return the law in this area to its original key Policy and Law Reform objects – openness, transparency and Access to Justice accountability - including the creation of an independent statutory position ANEDO prepared a submission to of Information Commissioner. the Senate Legal and Constitutional Affairs Committee as part of the The EDO also provided comments Senate Inquiry into Australia’s Judicial on Exposure Draft Bills produced System, The Role of Judges and Access by the Department of Premier to Justice. The submission focussed on and Cabinet in response the the terms of reference, relevant from Ombudsman’s review – namely, the an environmental and community Open Government Information Bill 2009 perspective, regarding the costs of (Exposure Draft) and the Information delivering justice, the ability of people Commissioner Bill 2009 (Exposure to seek legal representation, funding Draft). Many of the recommendations for Community Legal Centres, the made by the EDO (and others) adequacy of legal aid and the ability of are refl ected in the new Bills. Indigenous people to access justice. At the Commonwealth level, the The EDO has been active in the Federal Government also commenced area of freedom of information, a review culminating in the Freedom with both the Commonwealth of Information Amendment (Reform) and NSW governments moving to Bill 2009 and the introduction of the Information Commissioner Bill 2009. These Bills contained many of

68 EDO ANNUAL REPORT 2008-2009 the suggested reforms outlined by • Acknowledging Aboriginal the EDO in the submission to the connection to Country Ombudsman in NSW. ANEDO’s • Improving Aboriginal submission was therefore generally access to public lands supportive of the changes. • Increased Aboriginal participation Aboriginal Cultural Heritage in the management of public lands and Indigenous Rights • Developing economic The engagement of Indigenous opportunities from the communities in the protection of sustainable use of land the environment and their cultural heritage are issues of fundamental • Learning and working for Country. concern for many Aboriginal Following consultation with communities. The EDO has engaged Indigenous communities, the EDO extensively with Indigenous groups responded to the Discussion Paper. and Traditional Owners in relation A key recommendation was that to these issues in recent years. there needs to be a recognition Justice Environmental We have provided legal advice, of the impacts that lack of access policy support and represented to land has had on Aboriginal Indigenous clients in several cases communities and legislative reform before the courts, particularly in that recognises these associations. the area of cultural heritage. The feedback from Indigenous In the past year, the EDO was communities – as part of this process commissioned by the Murray Lower and more generally - prompted the Darling Rivers Indigenous Nations EDO to undertake a proactive policy (MLDRIN) to prepare four reports initiative that looked closely at the on Traditional Owner engagement area of cultural heritage in NSW. The in natural resource management; EDO prepared a Discussion Paper management options for the Werai involving, inter alia, a comparative forest; access and benefi t sharing; analysis of Indigenous heritage regimes and water for cultural purposes. The across Australia and the identifi cation EDO also attended a workshop in of best practice provisions. In May Deniliquin in May 2009 and gave 2009, the EDO hosted a Roundtable a presentation on management to stimulate discussion on these options for the Werai Forest. issues, which was attended by many In November 2008, DECC Indigenous experts, organisations and produced a Discussion Paper, Traditional Owners. Further work in Towards an Aboriginal Land this area is expected in 2009-10. Management Framework for In 2009, the NSW Government NSW, to consider issues relating introduced an Exposure Draft Bill to land management including: of the National Parks and Wildlife

EDO ANNUAL REPORT 2008-2009 69 Amendment Bill 2009 and consulted international obligations, as well as with key stakeholder groups, including the inclusion of the specifi c right to the EDO. The proposed reforms a clean and healthy environment. will make signifi cant amendments As part of a separate process, the EDO to Indigenous heritage including and the Foundation for Aboriginal and introducing new strict liability offences Islander Research Action prepared and increased penalties. In addition, a joint submission to the United general enforcement powers will be Nations Human Rights Council. The broadened to achieve the same level submission was a response to the call as in place for polluters. The EDO by the Council in its decision 7/23 supported these changes, while also “Human Rights and Climate Change”. recognising that the overall legislative At this time, the Council acknowledged framework for cultural heritage the human rights impacts of climate still needs to be fundamentally change and proposed fi ve terms of reformed through a separate Act reference. The submission focused pertaining to cultural heritage. on the impact of climate change Environmental Justice Environmental Human Rights and the Environment on Indigenous communities under In late 2008, the Federal Government the following terms of reference: launched the National Human Rights • assessments at the national level Consultation, run by an independent of the impact of climate change Committee, seeking a range of (experienced or anticipated) on views from across Australia about human lives and on populations the protection and promotion most affected and vulnerable; of human rights in Australia. • studies carried out at the national In order to facilitate active involvement level, including by independent by the community, EDO NSW and research institutions, on the EDO Victoria prepared a discussion relationship between climate paper that sought to identify key change and human rights; issues to assist community groups • projects and measures at a in drafting their submissions. national level to mitigate or ANEDO also wrote a submission adapt to climate change, including highlighting the need for greater information on any assessments protection of human rights focusing of the impact of such projects and primarily on those rights relating measures on affected populations to the environment. The central and their human rights; and, recommendation of the submission • views on the relationship was the need for a Human Rights Act between obligations arising out of to protect fundamental human rights. international climate conventions This legislation should include civil and and international human rights political rights and economic, social treaties, including on international and cultural rights, refl ecting Australia’s assistance and cooperation.

70 EDO ANNUAL REPORT 2008-2009 Public Health Environmental Law students, 20 In April 2009, the EDO prepared a August 2008, Amelia Thorpe) submission in response to the Draft • “Climate Justice” (Lecture to UNSW NSW Pesticides Regulation 2009, Energy Policy class, Kirsty Ruddock) which emphasised the importance • “A Bill of Rights in NSW” (NRCLC of public notifi cation of spraying and Seminar, 16 December 2008, Sue regulation of spray drift impacts. Higginson and Mark Byrne) Programs Publications The following program activities • Collings N and Grais A (2009) addressing environmental justice “Representation of Indigenous took place during 2008-2009: Rights in Poznan” in 7 Indigenous Seminars Law Bulletin March/April 2009 The EDO held seven seminars on • Collings N (2009) “Native Title, environmental justice in 2008-2009: Economic Development and

the Environment” in 93 Reform: Justice Environmental • “Public Participation on the Native Title 2009: A Journal Endangered List” with the Hon of National and International Murray Wilcox QC, Roland Browne Law Reform at pp 45-47 and Michael Bozic SC in Sydney • Grais A and Collings N (2009) • “Your Rights and Responsibilities “Human Rights, Climate Change and as a Protester in NSW” Indigenous Peoples” in 35 Human (Climate Camp, Newcastle) Rights Law Resource Centre • “Pollution Case Study: the Bulletin March 2009 at pp 2-3 Cox’s River” (Sydney) • Ratcliff I (2009) “Pollution” section • BrainFood series – “Sanitation” and in Environment Chapter of Law “Pesticides” (both in Byron Bay) Handbook, RLC Publishing, Redfern • Rally Oh! (a forum to discuss • Ruddock K (2008) “Bankruptcy: the special legislation governing the Price for Seeking to the World Rally Championships Protect Indigenous Rights” in the Northern Rivers area) 26 EPLJ at pp 81-87 Presentations • Ruddock K (2008) “Cheap retail • “Climate Crime” (Activating Human at the cost of culture” in Eureka Rights and Peace Conference, Street at http://www.eurekastreet. SCU, July 2008, Mark Byrne) com.au/article.aspx?aeid=10115 • “Long Range Transboundary Air • Ruddock K and Duggin G (2009) Pollution and the Montreal Protocol “Climate Change, Coal and on Substances depleting the Ozone Human Rights” 18(2) Human Layer” (UNSW International Rights Defender at pp 5-7

EDO ANNUAL REPORT 2008-2009 71 developer has not taken further Corporate Social action since the response Responsibility • Advice and submission of a complaint to the ACCC on behalf and Governance of a national group in relation to claims by Linc Energy that coal to liquid products will reduce GHGs Legal and Technical Advice and are ‘clean coal’ products The EDO has provided the • Lodged a complaint with the following advice this year, including: ACCC, alleging that representations • Incorporation advice provided to made by Ultra Clean Coal are two landcare groups near Ballina misleading and deceptive for their amalgamation proposal • Advice to NSW-based • Advice to Hunter group on group about copyright issues Ministerial directives to State- associated with displaying owned corporations regarding “greenwashing” advertisements the Hunter Water Corporation • Advice to national environment • Conference on restrictive group on misleading comments contracts relating to power about GM canola, including stations and coal in Victoria drafting a letter for them to send to company concerned • Assistance to EDO Victoria regarding a complaint about • Advice to NSW-based group on wood being carbon neutral green offsets rating scheme and claims that it breaches section 52 • Advice to a community group of Trade Practices Act (CTH) 1974 on the Hunter Development Corporation and their regulation • Lodged complaint to ACCC and advice to NSW environmental • Advice to a peak regional group about Australian environment group regarding Seafood advertisement the possibility of defamation for statements made in relation • Lodged complaint to the ACCC to a proponent on rezoning on behalf of clients about the Gaming Council advertising that Corporate Social Responsibility and Governance Social and Corporate Responsibility • Ongoing assistance to a NSW- they are fi rst in conservation based environmental group – in for hunting in NSW Forests collaboration with pro bono support from Freehills – in responding to defamation action threatened by a developer. The

72 EDO ANNUAL REPORT 2008-2009 Policy and Law Reform Taxation and the Environment Sustainability and Governance In May 2008, the Commonwealth Government announced the review, Under section 516A of the EPBC Act Australia’s Future Tax System. ANEDO 1999, all Commonwealth Government prepared a submission, focussing its agencies are required to report on comments on the tax transfer impacts their contribution to ecologically on the environment, the ways that sustainable development (ESD) taxes can improve environmental and other environmental matters. amenity and how the tax system As part of a proactive initiative, the can detract from environmental EDO reviewed the performance of a outcomes. The submission highlighted number of Government departments. the importance of the tax system Arising out of the review, the EDO to the environment and the need wrote to the Federal Minister to remove perverse incentives such recommending better tracking of as FBT and to encourage renewable sustainability reporting, stronger energy through tax concessions. criteria to be put in regulations, Carbon Neutrality reporting against best practice to The EDO prepared a submission be introduced, better coordination on behalf of ANEDO to the by DEWHA and the creation of a Department of Climate Change on new Sustainability Commissioner to the draft National Voluntary Carbon oversee sustainability reporting. Offset Standard encompassing the The EDO’s concerns were passed on defi nition of ‘carbon neutrality’ to the independent panel and were and ‘carbon footprint’ and key noted extensively in its Interim Report. principles. The submission, amongst other things, emphasised the need The EDO also prepared a submission to ensure offsets are subject to to the Inquiry into Sustainable rigorous scientifi c standards. Procurement, a current Legislative Assembly inquiry conducted by Programs the Public Accounts Committee in The following program activities NSW. The submission highlighted the addressing corporate social importance of NSW Government responsibility and governance compliance with sustainable took place during 2008-2009:

procurement policies and the need Presentations Governance Social and Corporate Responsibility for a triple bottom line reporting • “Best Practice in Planning: regime in NSW similar to section the CUB site as a case study” 516A of the EPBC Act 1999. (Green Buildings 2008 Seminar, 31 July 2008, Jeff Smith)

EDO ANNUAL REPORT 2008-2009 73 PART C: REPORTING AND GOVERNANCE

• Humane Society International EDO Clients • Koala Hospital • Little River Landcare In 2008-2009, the EDO provided • Macadamia Society legal assistance to hundreds of • Maitland Anti-Stink Campaign clients, including a diverse range • Manly Environment Centre of individuals and community organisations. Organisations assisted • Mudgee District by the EDO during the year include: Environment Group

EDO Clients EDO • Action for Public • MLDRIN – Murray Lower Darling Transport (NSW) Inc River Indigenous Nations • Australian Conservation • Nambucca Valley Conservation Foundation Association Inc • Australian Climate Justice Program • Nature Conservation Society • Australian Floodplain Association • North Coast Environment Group • Australian Society for Kangaroos • NSW Red Gum Action Incorporated • Angels Beach Dunecare & Reafforestation Group • Paroo River Association • Ballina Environment Society • Ryde Environment Group • East Ballina Landcare • Save Nimbo Creek • Bass Hill/Georges Hall • Save South West Rocks Residents Action Group Inc • SOS Liverpool Plains • Bateau Bay/Shelly Beach • Southlakes Communities Progress Association Against the Mine • Climate Action Network Australia • Sweetwater Action Group • Communities of Congewai • The Long Forest Catchment Inc. • The Wilderness Society • Friends of Currawong • Uki Village and District • Friends of Mongarlowe River Residents Association • Friends of Warringah • University of New South • Greenpeace Wales Rowing Club • Hastings Point Progress Association • WWF-Australia

74 EDO ANNUAL REPORT 2008-2009 • Phil Couch Acknowledgements • Emily Dyball • Anthony Eland • Michael Fallon Volunteers • James Fan The EDO continued to benefi t • Elyse Gorman from the assistance of volunteers • Alex Grais throughout 2008-2009. The Sydney Offi ce has capacity for four volunteers • Amber Hall per day and the Offi ce remained at • Yvonne Hales capacity throughout the reporting • Matt Jessep period. The Northern Rivers Offi ce • Rana Koroglu was assisted by local volunteers • Zsofi a Korosy from time to time but tended to • Julija Kuklyte rely on those in the Sydney Offi ce. • Aleta Lederwasch Acknowledgements In addition to regular volunteers who • Anna Lindeman tend to contribute a day of work each • Christine Lloyd week, the EDO accepted a number of student placements from various • Jacqui Lumsdaine universities who undertook training • Chloe Mason as part of their coursework. Law • Monica Massoud graduates completing their practical • Beth Mulqueeney legal training prior to becoming • Lovissa Nellevad solicitors also made up a signifi cant • Jacqui Nissim proportion of our volunteers • Steven Perry throughout the year. The EDO was • Marguerite Petit also able to attract volunteers to assist with both our Scientifi c Advisory • Georgie Philpott Service and our International Program. • Jeremy Pinto Volunteers greatly enhance the • Brendan Ross capacity of the Offi ce to provide • Gabe Sassoon accurate and timely legal and • Sonali Seneviratne technical assistance. The EDO • Kiran Singh would like to thank the following • Emma Sutton volunteers from 2008-2009 for • Chris Taylor their commitment and hard work: • Mira Van der Ley • Kristina Augustin • Huong Vu • Alana Begg • Brelleen Warry • Liz Caldwell • Elliott Weston • Ron Cater • Louise Whittan • Tamzyn Chapman • Jocelyn Williams • Jennifer Choi • Yang Xu

EDO ANNUAL REPORT 2008-2009 75 Pro Bono Assistance • Jacquie Gleeson The legal and scientifi c community • Tom Howard also lend invaluable support to • Heather Irish the work of the EDO, providing • Jeremy Kirk legal and advisory services for a reduced fee or, in many cases, for no • Patricia Lane charge. The EDO is deeply grateful • Patrick Larkin to the many barristers, solicitors, • Jason Lazarus fi rms, scientists and experts for • Craig Lenehan their ongoing commitment to the • Michael McColl provision of pro bono assistance in public interest matters. • Chris McGrath • Miranda Nagy Legal Assistance • Gerard Ng The EDO would like to thank the • Bridie Nolan Acknowledgements following barristers, solicitors and fi rms who provided their time and • Chris Norton assistance with EDO litigation and • Rick O’Gorman Hughes other matters in 2008-2009: • Andrew Pickles • Christine Adamson SC • Sarah Pritchard • Gerry Bates • Mark Seymour • Marion Carpenter • Andrew Sinclair • Phil Greenwood SC • Kristina Stern • Craig Leggatt SC • Houda Younan • Stephen Lloyd SC Scientifi c and Technical Assistance • Ian Lloyd QC The EDO would like to thank • Bruce McClintock SC the following experts, both on • Tim Robertson SC and off the Expert Register, who • Peter Tomasetti SC provided assistance during 2008- • Bret Walker SC 2009, and all those who provided • Neil Williams SC assistance anonymously: • Margaret Allars • Paul Adam • Ken Averre • Stephen Ambrose • Tony Auld • Matthew Baird • Sara Beavis • DLA Phillips Fox • Sarah Bekessy • Sandra Duggan • Mal Brown • Nick Eastman • Neil Davis • David Farrier • Chris Dickman • Freehills • Michael Dunlop • Gilbert and Tobin

76 EDO ANNUAL REPORT 2008-2009 • Laura Eadie remain anonymous) for their generous • Martin Fallding fi nancial and/or in-kind support: • Simon Ferrier • Dr Lee Andresen • Toby Fiander • Sean Arundell • Perry Goebel • Geoffrey Ball • Garry Hall • William Blunt • David Holden • Environment and Planning Law • Kate Hughes Association (NSW) Inc • Richard Kingsford • Anis Ghanem • Peter Karantonis • Great Lakes Environment • Judy Lambert Association Ltd • Barry Le Plastrier • Sylvia Hale • Iain MacGill • Dr Ronnie Harding • Jan McDonald • Murray Hogarth Acknowledgements • David Milledge • Frank Hubbard • Bill Morton • Huskisson & Woollamia • Phil Mulvey Community Voice • Hugh Outhred • Michele Kearns • Andy Pitman • Dr Andrew Kelly • Damon Roddis • David Lemcke • Evelyn Rodrigues • DLA Phillips Fox • Nick Skelton • Doug Lithgow • Milton Speer • Ron Marshall • Celine Steinfeld • Ilona Millar • Jane Williamson • Tony Moody • Ian Wright • Warwick Pearse • Brendan Wintle • Robert Purves Donors • Richard Smyth As a non-government and non-profi t • The Step Inc organisation, the EDO gratefully • James Tedder accepts support from a range of • Paul Toni sources. The support received helps • John Weate the Offi ce to achieve its mission and in no way compromises the • Willoughby Environmental Protection Association independence of the organisation. The EDO would like to acknowledge the • Huong Vu following individuals and organisations • Young and Cooke (as well as those who choose to • Alek Zander

EDO ANNUAL REPORT 2008-2009 77 Operations Manager EDO People Meredith MacDonald IT/Administrator John Scanlan Staff Receptionist/Administrator At 30 June 2009, the staff Diana Beaton of the EDO comprised: Director Staff Changes Jeff Smith The EDO enjoyed relatively EDO People EDO Principal Solicitor stable staffi ng during the year Kirsty Ruddock with no changes in the Programs, Science and Operations Teams, Senior Solicitors and Northern Rivers Offi ce. Ian Ratcliff (Northern Rivers) Jessica Wood (Northern In the Policy Team, Rachel Walmsley Rivers – currently on leave) went on maternity leave from October 2008. Robert Ghanem Solicitors moved up from his Policy Offi cer Sue Higginson (Northern Rivers) position to act as Policy Director Felicity Millner during Rachel’s absence. Richard Neva Collings Howarth moved from Assistant Melissa Jolley Policy Offi cer to Policy Offi cer BJ Kim and Gillian Duggin was recruited Policy Director as a new Assistant Policy Offi cer Robert Ghanem (Acting) from December 2008. Rachel Walmsley (currently on leave) In the Litigation Team, Josie Walker Policy Offi cer and Jacquie Svenson both left in Richard Howarth December 2008 (Josie to take up the Principal Solicitor position at EDO Assistant Policy Offi cer WA) and were replaced by Melissa Gillian Duggin Jolley and BJ Kim. Elaine Johnson Scientifi c Director was employed as a locum solicitor Tom Holden during the second half of the year. Scientifi c Offi cer In the Programs area, the Offi ce Kristy Graham was able to expand Neva Colling’s two day per week Aboriginal Programs Director Liaison Offi cer role to a full-time Amelia Thorpe Indigenous Solicitor position from Education Offi cers October 2008. In May, we employed Jemilah Hallinan a Project Offi cer, Rosemary Mark Byrne (Northern Rivers) Bullmore, to work on two newly funded projects until March 2010. Education Assistant Heidi Evans The Offi ce was fortunate in being able to employ a number of casuals

78 EDO ANNUAL REPORT 2008-2009 and interns for various periods during At 30 June 2009, the EDO the year: Gabrielle Brine provided Board comprised: casual support to the Operations Patron Team; Abby Symes worked as a Policy Intern; and Dominic Adams and Mr Hal Wootten AC QC Kate Vanderfi eld as Legal Interns. Chair The Hon. Murray Wilcox, QC Staff Training and Development Vice-Chair Prof. Michael Jeffery QC The EDO continues to support Professor of Environmental People EDO the training and development of Law and Head of Social & its staff, to enhance their capacity Environmental Research Group, to deliver high quality advice and University of Western Sydney assistance for our clients. In recent years, the Offi ce has worked to Secretary broaden the skill base of legal staff to Warwick Pearse facilitate the development of cases Principal, HSE Services under laws of general application, Treasurer such as criminal and civil law. Helen Gillam The Offi ce is committed to allocating Lecturer, University of funds for external staff training Technology, Sydney and development, in addition to undertaking internal legal education Barbara Adams sessions on specifi c topics with special Planner, Woollahra Council relevance for the EDO’s work. In Louise Byrne 2008-2009, EDO staff attended a Senior Solicitor, City of Sydney total of 79 external training sessions. Andrew Cox Board of Management Executive Offi cer, National Parks Association of NSW The EDO is a non-profi t company limited by guarantee and its volunteer Cate Faehrmann Board provides strategic direction and Executive Director, Nature governance to the Offi ce. The Board Conservation Council of NSW is elected at each annual general Murray Hogarth meeting. Board members attend six- Director, Econation Pty. Ltd. weekly meetings, planning days and some community education events. Frank Hubbard They make a major contribution Director, Corporate to the work of the Offi ce, guiding Responsibility, InterContinental its strategic development and Hotels Group, Australasia devoting considerable time and expertise to the work.

EDO ANNUAL REPORT 2008-2009 79 the EDO’s income in 2008-2009; Funding and Commonwealth funding amounted to Financial Report $110,459 or 5.4% of overall revenue. Up until recently, all the EDOs in Australia have been subject to a “no- litigation” condition preventing them Funding From Grants from using funding received from The EDO is overwhelmingly the Commonwealth Government dependent on grants to fund its to undertake litigation or litigation- operations at their current level. As related activities. While the restriction in previous years, the major source did not have a signifi cant impact on of funding for the organisation is the this Offi ce due to the availability of Public Purpose Fund (PPF). This is a range of funding, it has seriously triennial funding and was awarded constrained the work of other for the period 2006 to 2009. The Offi ces. ANEDO successfully PPF provided $1,357,048 or about negotiated the lifting of the litigation 66% of the EDO’s income in 2008- restriction during this year. 2009. The EDO was pleased to The EDO also benefi tted from a be successful in securing funding one-off boost in its triennial grant from the PPF for the period 2009 from the NSW Government through – 2012, providing a sound fi nancial its Environmental Trust under the base for its continued operations. Lead Environmental Community

Funding & Financial ReportingFunding Triennial funding is also received from Groups Grants Program which both the Commonwealth Attorney- contributes to the organisation’s General’s Department and Legal administrative costs. Funding through Aid NSW through the Community this Program amounted to $75,000 Legal Services Program (CLSP). this fi nancial year. This triennial grant The current Funding Agreement was for the period 2006 – 2009. covered the period 2005-2008; it An application has been lodged for was extended for a further year in further funding for 2009-2012. 2008-2009 and will be extended again The John D. and Catherine T. in 2009-2010 as the Commonwealth MacArthur Foundation is another completes a review of the Program. major funder of the EDO with While Commonwealth and NSW triennial funding of $US250,000 CLSP recurrent funding has remained from 1 March 2007 to 28 February static, with indexation increases 2010. This funding is for a legal only, Community Legal Centres capacity building work in Papua New benefi tted from the release of Guinea and in the Pacifi c. The EDO additional one-off funds in 2008- will seek further funding from the 2009, which provided the EDO Foundation to fund international with $20,000 above its base grant. work beyond February 2010. CLSP funds from NSW accounted for $174,967 or about 8.5% of

80 EDO ANNUAL REPORT 2008-2009 In addition to the triennial of $152,861. This compares with grants outlined above, the EDO $125,661 last fi nancial year. received a number of smaller grants allocated for a shorter Financial Performance time and for specifi c projects In 2008-2009, the EDO had a surplus during 2008-2009. These were: of $46,364. This result is consistent • Community Legal Centres NSW with the outcome in most years through the Aboriginal Legal Access where the surplus/defi cit is within 5% Program (with funding provided of annual revenue. The Board seeks by the Public Purpose Fund) to to steer a course which balances improve delivery of environmental expending funds to enhance the law services to Aboriginal work of the organisation to the clients in New South Wales greatest extent that is reasonable while retaining adequate reserves • NSW Government through its to ensure the organisation can Environmental Trust for publication deal with contingencies that and distribution of a revised edition may arise. To this end, the Board of the Rural Landholder’s Guide planned for and achieved a • City of Sydney Council for moderate surplus for this year. completion of a series of seminars and for development of a Major Projects Toolkit • NSW Government through

its Environmental Trust for a & Financial ReportingFunding Private Conservation Program • The Commonwealth Department of Agriculture, Fisheries and Forestry under its “Caring for our Country” Program to develop and distribute a publication, Caring for the Coast: A guide to environmental law for coastal communities in NSW Income Generation In addition to the income received from grants, the EDO generated other income from fees charged for our professional services, education activities, memberships, donations and bank interest. This money enables the EDO to undertake work which is strategically important but cannot be done within the terms of funding contracts. In 2008-2009, the EDO generated other income

EDO ANNUAL REPORT 2008-2009 81 Australian equivalents to International Independent Financial Reporting Standards (IFRS) ensures that the fi nancial report, Auditor’s Report comprising the fi nancial statements and notes, complies with IFRS. Auditor’s Responsibility Scope Our responsibility is to express an We have audited the accompanying opinion on the fi nancial report based fi nancial report of Environmental on our audit. We conducted our audit Defender’s Offi ce Limited (the in accordance with Australian Auditing company), which comprises the Standards. These Auditing Standards balance sheet as at 30th June require that we comply with relevant 2009 and the income statement, ethical requirements relating to audit statement of changes in equity and engagements and plan and perform cash fl ow statement for the year the audit to obtain reasonable ended on that date, a summary assurance whether the fi nancial report of signifi cant accounting policies is free from material misstatement. and other explanatory notes and the directors’ declaration. An audit involves performing procedures to obtain audit evidence The Responsibility of about the amounts and disclosures in the Directors for the the fi nancial report. The procedures Financial Report selected depend on the auditor’s judgment, including the assessment Independent Auditor’s Report Auditor’s Independent The directors of the company are of the risks of material misstatement responsible for the preparation and of the fi nancial report, whether fair presentation of the fi nancial due to fraud or error. In making report in accordance with Australian those risk assessments, the auditor Accounting Standards (including considers internal control relevant Australian Accounting Interpretations) to the entity’s preparation and and the fi nancial reporting fair presentation of the fi nancial requirements of the company’s report in order to design audit constitution. This responsibility procedures that are appropriate in includes designing, implementing and the circumstances, but not for the maintaining internal control relevant to purpose of expressing an opinion the preparation and fair presentation on the effectiveness of the entity’s of the fi nancial report that is free from internal control. An audit also includes material misstatement, whether due to evaluation the appropriateness fraud or error; selecting and applying of accounting policies used and appropriate accounting policies; and the reasonableness of accounting making accounting estimates that are estimates made by the directors, reasonable in the circumstances. In as well as evaluation the overall Note 1, the directors also state, in presentation of the fi nancial report. accordance with Accounting Standard AASB 101: Presentation of Financial We believe that the audit evidence Statements that compliance with the we have obtained is suffi cient

82 EDO ANNUAL REPORT 2008-2009 and appropriate to provide a basis for our audit opinion. Independence In conducting our audit, we have complied with the independence requirements of the Australian professional ethical pronouncements. Auditor’s Opinion In our opinion, the fi nancial report presents fairly, in all material respects, the fi nancial position of Environmental Defender’s Offi ce Limited as of 30th June 2009, and of its fi nancial performance and its cash fl ows for the year then ended in accordance with Australian Accounting Standards (including Australian Accounting Interpretations).

Joe Pien Chartered Accountant Suite 503, Level 5, 276 Pitt Street, Sydney, NSW, 2000 Report Auditor’s Independent Dated this 9th day of October 2009

EDO ANNUAL REPORT 2008-2009 83 BALANCE SHEET AS AT 30 JUNE 2009

2009 ($) 2008 ($) ASSETS

CURRENT ASSETS Cash Assets 735,361 387,952 Receivables 171,543 178,361 Other Financial Assets 37,132 110,669 TOTAL CURRENT ASSETS 944,036 676,982

NON CURRENT ASSETS Property, Plant & Equipment 46,750 60,756 TOTAL NON CURRENT ASSETS 46,750 60,756 TOTAL ASSETS 990,786 737,738

Independent Auditor’s Report Auditor’s Independent LIABILITIES

CURRENT LIABILITIES Trade and Other Payables 432,294 227,568 Short Term Provisions 125,316 123,358 TOTAL LIABILITIES 557,610 350,926 NET ASSETS 433,176 386,812

EQUITY Reserves 110,000 Retained Earnings 433,176 276,812 TOTAL EQUITY 433,176 386,812

84 EDO ANNUAL REPORT 2008-2009 PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 30 JUNE 2009

2009 ($) 2008 ($) INCOME Grants Received 1,805,823 1,557,450 MacArthur 86,187 91,294 Donations and Memberships 13,586 6,790 Conference, Publications & Workshops 4,931 5,540 Professional Fees 94,969 59,637 Interest Received 52,861 51,769 Other Revenue 100 1,925 2,058,457 1,774,405

EXPENDITURE Auditor’s Remuneration - Financial Statements 9,815 7,815 Accountancy and Bookkeeping 30,403 19,456 Independent Auditor’s Report Auditor’s Independent Bad Debts Written Off 6,790 5,194 Bank and Government Charges 5,403 2,188 Casual Labour - 3,053 Consultants Fees - 9,007 Conference, Publications & Workshops 67,339 57,862 Depreciation 18,993 16,925 Doubtful Debts - 3,675 Employee Entitlement Provision 1,958 13,854 Employee Expenses 1,630 1,369 General Expenses 826 769 Insurance 11,988 10,440 Legal Fees 977 - Light & Power 4,917 4,795 Macarthur Expenses 99,628 119,116 Equipment Lease 6,205 6,644

EDO ANNUAL REPORT 2008-2009 85 PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 30 JUNE 2009 (Continued)

2009 ($) 2008 ($) EXPENDITURE (Continued) Offi ce Costs 15,454 13,311 Organisational Development 22,675 - Postage & Couriers 3,666 3,569 Printing & Stationery 20,092 19,757 Rent - Offi ce 118,004 110,934 Repairs & Maintenance - 1,273 3,446 General Repairs & Maintenance Salaries & Wages 1,348,858 1,191,629 Staff Training & Welfare 20,865 15,866 Staff Amenities 4,378 3,373 Staff Recruitment 890 1,897 Subscriptions 23,862 31,862

Independent Auditor’s Report Auditor’s Independent Superannuation Contributions 118,350 104,761 Telephone & Internet 30,160 36,553 Travelling Expenses 16,694 31,244

2,012,093 1,850,364 OPERATING PROFIT/(LOSS) 46,364 (75,989) BEFORE INCOME TAX

[Note – this is an abridged copy of the Financial Report for the year ended 30th June 2009. For a full copy of the Report, please contact the offi ces of the Environmental Defender’s Offi ce Ltd.]

86 EDO ANNUAL REPORT 2008-2009 Environmental Defender’s Offi ce (NSW) Level 1, 89 York St, Sydney NSW 2000 Tel: 02 9262 6989 Fax: 02 9262 6998

www.edo.org.au

EDO ANNUAL REPORT 2008-2009 89