The environmental defender's office NSW, 1985-1995

Environmental and Planning Law Journal

Volumn 13, Issue 3, 1996, Pages 155-178

  Robinson, David ^a  

^a NONE

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EID: 84871551794     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (131)

1. David Robinson was a solicitor with the EDO 1989-92. While presently a solicitor with the Environment Protection Authority (NSW), the views expressed in this article are personal. The author acknowledges the assistance of Ben Boer, Maria Comino, James Johnson, Nicola Pain and Brian Preston in commenting upon and providing additional copy for earlier drafts of this article. Any errors and omissions are those of the author.
2. Section 123.
3. The Land and Environment Court has six classes of jurisdiction. In classes 1, 2 and 3, development, building and valuation appeals may be brought respectively. Most EDO cases to date have been merit appeals regarding designated developments (class 1), and administrative law appeals (class 4). Criminal prosecutions are heard in classes 5 and 6. The rules of evidence do not apply in classes 1-3.
4. ELA subsequently became part of the National Environmental Law Association (NELA), and was reconstituted as the Environmental Planning and Law Association (EPLA) in 1994.
5. 23 February 1982.
6. Now Chief Judge of the Federal Industrial Court.
7. Ben Boer, then a Lecturer in Law at Macquarie University, was its initial convenor. Michael Mobbs was the committee's energetic secretary.
8. Extract of letter from ELA President Murray Wilcox QC to the Commonwealth Legal Aid Council dated 22 December 1981.
9. Extract of letter from ELA President Murray Wilcox QC to the Commonwealth Legal Aid Council dated 22 December 1981.
10. The Law Foundation of New South Wales receives the interest from solicitors' trust accounts to fund legal research, law reform, and law education projects.
11. Murray Tobias QC, President of the Environmental Law Association (ELA), in a memo to the Executive Committee of the Association; undated-approximately August 1982.
12. Prineas v Forestry Commission (NSW) (1983) 49 LGRA 402
13. (1984) 53 LGRA 160.
14. While access to apply for legal aid is open to all, in practice the EDO has submitted more applications each year than all private practitioners combined.
15. Corkill v Forestry Commission (NSW) (1990) 71 LGRA 116
16. (1991) 73 LGRA 126-interim and permanent orders respectively preventing the logging ofChaelundi Forest, near Dorrigo, in breach ofthe protected fauna and endangered species provisions (ss 98-99) National Parks and Wildlife Act 1991
17. The EDO learned of the difficulty of acting in mixed interest cases in a river topsoil extraction case in 1991. A commercial competitor approached EDO to challenge, on environmental protection grounds, a particular topsoil extraction operation on the banks of the Hawkesbury River. The office commenced proceedings. However the case increasingly focused on private interest aspects, eventually necessitating EDO to refer the client to a private firm of solicitors. The office has not acted for any clients with mixed commercial and environmental concerns since this case.
18. See "Reactive and strategic litigation", p 169.
19. See D Robinson, "Public Interest Environmental Law Firms in the US", in D Robinson and J Dunkley (eds), Public Interest Perspectives in Environmental Law (London, Wiley Chancery, 1995), pp 40-69.
20. See "2. Legal aid in public interest environmental cases", p 165.
21. The subject, Environmental Law, had only been taught for a few years at that point. At the University of New South Wales it had been offered since 1978, and at Macquarie University since 1979.
22. Comment on earlier draft of this article.
23. D Robinson, "Contaminated land at the Newcastle lead smelter and the role of community groups in integrated contaminated land management" in G C Rowe and S Seidler (eds), Contaminated Sites in Australia (Allen & Unwin, Sydney, 1993), pp 87-92.
24. See "2. Legal aid in public interest environmental cases", p 165.
25. Of the 103 inquiries requiring more than initial advice in the first two years of operation 1984-87, 18 per cent concerned quarries and mines (Impact, December 1987).
26. Unreported Land and Environment Court judgment, 1988, in proceedings 40171, 1985.
27. Fuller v Bellingen Shire Council (1986) 161 CLR 47
28. Godfrey v Minister for Planning & Environment (unreported, Land and Environment Court, No 40208-86, 1986; unreported, Court of Appeal, No 8-87, 1987).
29. Nettheim v Minister Administering the Heritage Act (unreported, Land and Environment Court, No 40086-88 and No 40139-88, 1988); ELR 89-809.
30. Nettheim v Minister Administering the Heritage Act (unreported, Court of Appeal, 1988); 16 ALD 796.
31. Myall Koala and Environmental Support Group v Great Lakes Shire Council (unreported, No 10096, 1990); ELR 91-903.
32. Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115.
33. Vaughan-Taylor v David Mitchell-Melcann Ply Ltd (1991) 73 LGRA 18.
34. Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991)
35. LGRA 366.
36. See s I09(2)(b), EP&A Act.
37. Fauna Conservation Act 1974 (Qld).
38. Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd, described in M Comino, "Batting for Non-Pecuniary Interests in Queensland" June (1989) Impact'5-8.
39. Brown v Environmental Protection Authority (1992) 75 LGRA 397
40. (1992) 78 LGERA 119 (unreported, Court of Appeal, security for costs judgment, No 40735-92, 1 April 1993).
41. Adavale Association Inc v Parkes Shire Council (mediation, Land and Environment Court, No 10119-91).
42. Malcolm on behalf of Maryland Residents Group v Newcastle City Council (1991) 73 LGRA 356.
43. National Parks Association v Minister for Environment (unreported, Land and Environment Court, No 40155-91, 1998
44. D Robinson, "Contaminated land at the Newcastle lead smelter and the role of community groups in integrated contaminated land management" in G C Rowe and S Seidler (eds), Contaminated Sites in Australia (Allen & Unwin, Sydney, 1993), pp 87-92.
45. D Robinson, "Contaminated land at the Newcastle lead smelter and the role of community groups in integrated contaminated land management" in G C Rowe and S Seidler (eds), Contaminated Sites in Australia (Allen & Unwin, Sydney, 1993), pp 87-92.
46. State Environmental Planning Policy 33-Hazardous and Offensive Industry.
47. See "The Western Environmental Law Center, Oregon and the role of smaller public interest law firms" in D Robinson, "Public Interest Environmental Law Firms in the US", D Robinson and J Dunkley (eds), Public Interest Perspectives in Environmental Law (London, Wiley & Son, 1995), pp 58-59.
48. The US office of E-LAW can be contacted at elaw. usoffice@conf. igc. apc. org or 1877 Garden Avenue, Eugene, Oregon 97403, USA.
49. See D Robinson, "Endangered Species Protection and Environmental Management in the Solomon Islands" (1992) 9 EPLJ 51.
50. See "2. Legal aid in public interest environmental cases", p 165.
51. (1995) 85 LGERA 296
52. 127 ALR 580
53. 37 ALD 73.
54. Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270.
55. In 1994 the EDO published, with the assistance of Independent Community Rights and Advocacy Forum Inc (PNG), a handbook, Law for Landowners in PNG and a Pidgin language translation, Lo Bilong 01 Papa/Mama Graun.
56. See B Brunton, "ICRAF-Papua New Guinea's first environmental and human rights legal office" (1993) 31 Impact 10-11.
57. EDO, Regulatory Strategies for Ecologically Sustainable Management of Inland Rivers-Final Report, 1994.
58. EDO (ed), Inland Rivers: Regulatory Strategies for Ecologically Sustainable Development-proceedings of a conference held 8 November 1994, Sydney.
59. Comment on an earlier draft of this article.
60. In Vaughan-Taylor an earlier version of s 25 of the Environmental Offencesand Penalties Act 1989 (EO&P Act) was relied upon to institute a claim in respect of the Mining Act 1971.
61. Submission of EPA Counsel, Gay Murrell, to the Land and Environment Court, 26 June 1992.
62. Inner City & Foreshores Community Action Group Inc v Environment Protection Authority (unreported, Supreme Court, No 30025-94).
63. Comment on an earlier draft of this article.
64. Forestry Commission of NSW v Sheed (unreported, Supreme Court, No 2903, 1993).
65. (1995) 85 LGERA 296
66. 127 ALR 580
67. 37 ALD 73.
68. (1995) 85 LGERA 270
69. 36 ALD 30.
70. F Dawson, "A major mining project is fast tracked in the Northern Territory, but at what cost?" (1993) 30 impact 5-II.
71. (1995) 85 LGERA 296
72. 127 ALR 580
73. Comments on an earlier draft of this article.
74. J Johnson, "Amendments to the Administrative Procedures" (1995) 38 Impact 3-5.
75. For the opening address to the conference, see R Sackville, "Australian Environmental Law: Some Structural Issues" (1995) 40 Impact 1-5.
76. See M Comino, "Access to Justice" (1994) 35 Impact 1-3
77. "The Justice Statement-Good News for EDOs" (1995)38 Impact 1-3
78. "The Progress of EDOs in Other States" (1995) Impact 16.
79. Report 27 (AGPS, 1985), cited in B Boer, "Legal'Aid in Environmental Disputes" (1986) 3 EPLJ 22.
80. In the period 1985-86 to 1989-90, two additional grants of legal aid in environmental matters of national interest were approved at the Commonwealth level, resulting in payment of legal costs and disbursements totalling $216,693: Office of Legal Aid and Family Services letter to Dr T Bonyhady, 5 December 1990, compiled from Attorney-General's Department annual reports.
81. Legal Services Commission of NSW, Position Paper: Legal Aid in Land and Environmental Matters, April 1985, p 2.
82. Minutes of EDO Board meeting held 18 April 1985.
83. Comments upon an earlier draft of this article.
84. The eligibility criteria as adopted were largely as proposed by Brian Preston and Ben Boer in their submission.
85. Justice Murray Wilcox, EDO official opening, 30 May 1985.
86. Pursuant to s 47, the legally aided plaintiff is immune from any costs order, and the Legal Aid Commission pays on the plaintiff's behalf, but only up to a statutory maximum. At the time of the abolition of environmental grants of aid, 31 December 1992, the maximum was $12,500.
87. See "Other procedural and participation precedents", p 168.
88. This categorisation roughly corresponds with the distinction between merit appeals and judicial review. What are described below as "EIA precedents" and "procedural and participation precedents" are both judicial review other categories. However some judicial review cases may be considered more important for the particular environment at stake than they are for their legal precedent value, and so a legal categorisation may not always be helpful.
89. Class I appeals, Land and Environment Court, in which the court reviews the merits of the development consent granted by a local council.
90. BHP Ltd v Blacktown City Council (unreported, Land and Environment Court, 10452-88, 18 April 1989).
91. Col Allison, "Suburban mini-mill proves its mettle", 21 November 1992.
92. These come within class 4 of the Land and Environment Court, in contrast to the merit appeals under class 1.
93. Jarasius v Forestry Commission (NSW) (1988) 71 LGRA 79.
94. Jarasius v Forestry Commission (NSW) (No 2) (1989) 69 LGRA 156.
95. (1989) 76 LGRA 200
96. 19 ALD 70.
97. See "Commonwealth EIA", p 164.
98. (1991) 73 LGRA 317.
99. Unreported, Land and Environment Court, No 40258-91
100. Court of Appeal (1992) 81 LGERA 132.
101. Hawkesbury City Council, and Foster v Mushroom Composters Pty Ltd (1993) 80 LGERA 30
102. Hawkesbury City Council v Mushroom Composters Pty Ltd (unreported, LEC, No 40150, 1991, Pearlman CJ, 31 May 1995)
103. Hawkesbury City Council v Mushroom Composters Pty Ltd (unreported, LEC, No 40150, Pearlman CJ, 4 August 1995).
104. EDO Annual Report, 1987, p 9.
105. See "The early years: 1985-1989", p 159.
106. See "Only a 'Duty Solicitor' role?", p 158.
107. "In contrast to the traditional role there is also what has been referred to as the structural role. That is, it is litigation that aims to have a structural impact on environmental law and policy. Not only does this involve using laws innovatively but it also involves being involved in the creation and development of new laws which better achieve environmental protection. Litigation of this nature is a tool by which change is made possible. The effect of litigation in this area is essentially political because, by applying the law in previously unrecognised ways, it provides political movement on an issue". D Mossop, "Future Directions for Public Interest Environmental Law in Australia", pp 6-7, Public Interest Law, Community Legal Centres and the Environment (Sydney, Environmental Defender's Office, 1992).
108. Water Administration Ministerial Corp v Local Land Board (Wilcannia) (1995) 88 LGERA 278.
109. J Johnson, "Mining and Ecologically Sustainable Development-Theory and Practice" (1995) 40 Impact 610.
110. The proposed EDO Board was to comprise nominees of the Bar Association, the Legal Services Commission, the Australian Council of Social Services, State and Commonwealth Attorneys General, the Local Government Association, the National Trust, the Building Owners and Managers Association, the Nature Conservation Council of NSW, the Royal Australian Institute of Planners, the Royal Australian Institute of Architects and the Environmental Law Association.
111. Nicola Pain (Principal Solicitor 1988-92)-Assistant Secretary, Environment Review Branch, Environment Protection Agency (Commonwealth) 1992-94, now Acting Manager Litigation, Environment Protection Authority (NSW) (EPA)
112. David Robinson (solicitor 1989-92)-now a solicitor with the-EPA (NSW); Susan Ingram (volunteer 1991)-now an EIA project officer with the Commonwealth EPA; David Mossop (solicitor 1993-94)-now associate to Justice McHugh, High Court; Brian Preston (Principal Solicitor 1985-87)-now a leading junior counsel and Deputy Director of the Australian Centre for Environmental Law (Sydney); Andrew Langley-solicitor, Blue Mountains; Elena Kirrilova (solicitor 1987-89)-now the managing partner of the Moscow office of international law firm, McKenna & Co; Chris McElwain (volunteer commencing 1990)-solicitor EPA (NSW); Melinda Richards (volunteer 1990-92)-solicitor EPA (NSW); Ebhor Muroez (volunteer 1991-92)-Environment Officer, Local Government and Shires Association; Louise Byrne (volunteer 1992-93)-Research Officer, Land and Environment Court; Lil Cullen (volunteer 1991-92)-solicitor EPA (NSW).
113. See "(c) Procedural barriers", p 164 and Section 2 above.
114. See the discussion of the Araluen case in the EDO Annual Report 1984-85.
115. See Annual Report 1986-87.
116. September (1987) Impact.
117. December (1987) Impact.
118. While the protection of wilderness is a separate issue to the creation of national parks, as for the latter the Carr government promised in 1995 to create 24 new national parks in its first year of office.
119. EDO Annual Report 1993-94, p 12.
120. See the Forestry Restructuring and Nature Conservation Act 1995.
121. Annual Report 1991-92, p 11.
122. (1994) 86 LGERA 143.
123. Australian Centre for Environmental Law, August 1995 newsletter, p 5-address to University of Sydney Masters of Environmental Law graduates, 6 May 1995.
124. Spring (1995), Environmental Defender 3.
125. Howard Latin, "Regulatory Failure, Administrative Incentives and the Clean Air Act", Environmental Law (1991) 21 1647, North Western School of Law of Lewis and Clark College.
126. Unreported, Land and Environment Court, 40058-90.
127. United Residents Group for the Environment (URGE) v Lake Macquarie City Council (unreported, Land and Environment Court, 40196-91).
128. See also D K Anton, "Clinical Legal Education-the Australian Approach" (1995) 39 Impact 7-9.
129. In 1996 the University ofSydney is running a more formally organised programme, the Environmental Law Clinic Seminar, in collaboration with the EDO.
130. Comment on an earlier draft of this article.
131. Compiled by Maria Comino with the assistance of EDO student volunteers.