edoqld.org.au @EDOQldLaw How to use the law to protect Revel - - PowerPoint PPT Presentation

edoqld.org.au

@EDOQldLaw

How to use the law to protect your environment and your community

Revel Pointon EDO Qld

Image: https://www.travel-associates.com.au/destinations/tropical-north-queensland

YOUR R POWER WERS S to

• pr

prot

• tect the

the env nvironment

• Your legal rights
• The facts
• Your vote
• Your networks / communication

http://www.playbuzz.com/simonedaly11/which-captain-planet-planeteer-are-you

Who ho are E EDO DO Ql Qld? d?

Specialist lawyers who provide :

• legal advice
• representation
• legal education
• law reform

in public interest environmental law

Who ho are E EDO DO Ql Qld? d?

A community legal centre:

• Social and environmental justice focus
• Not for profit
• Charitable organisation
• Non-government

We are here to help you …and we rely on you to continue our work. Thank you to all those who help support us!

Ar Areas we we adv dvise on

• n
• Understanding laws and decision making processes
• Your rights to be involved /scrutinise decision making
• Preparing submissions and getting involved with decision

making

• Recent advices:

…. concerns over vegetation clearing, peaceful assembly, kangaroo culling, illegal mangrove clearing, pesticide use, public land protection, noise from freeway, run-off pollution from a tip, proposed filling in of migratory bird habitat, rerouting of a creek, environmental nuisance from unauthorised industry in residential area, protection of heritage properties; coal train noise; pollution from poultry farms; koala habitat protection; inappropriate development; how to protect open space from development…

EDO DO Ql Qld d Adv Advice Line

• Free advice service for public interest environmental

legal questions

• Assisted by volunteer solicitors and students
• Direct enquiries to:

edoqld@edoqld.org.au 07 3211 4466

EDO O Ql Qld d work k – legal representa tati tion

• n
• Flying fox cases (2004): Protecting flying foxes and

Wet Tropics World Heritage Area from large-scale electrocution without permits – Booth v Bosworth

• Nathan Dam case (2004): (for QCC and WWF) ensuring the

environment minister must consider downstream impacts from related farming in federal environmental assessment

• Paradise Dam case (2011): Wide Bay Burnett Conservation Council

sought a declaration and injunction to restrain an alleged contravention of conditions due to unsuitable facility to assist ancient lungfish passage

• GBR dredging and dumping cases (2015): NQCC (AAT) and Mackay

Conservation Group (Federal Ct) against the dredging and dumping of dredge waste in the GBRMP; and Alliance to Save Hinchinbrook Inc. (Federal Ct) re. Caley Valley Wetlands dumping

• Mega coal mine cases: Assisting numerous clients with representation

against Carmichael, Alpha, Kevin’s Corner and New Acland coal mines

Car Carmichael Min Mine in in Lan and Co Cour urt, Supr Supreme Co Cour urt t an and Fe Federal Co Cour urt

This material is for information purposes and is not legal advice.

Adan ani C i Carmic michae ael Jobs bs an and Fas Fast-trac ackin king

• 1464 net jobs, not 10,000 jobs, Dr Jerome Fahrer
• Constant misinformation
• Need more rigorous EIS process – ( LAW REFORM

OUTCOME! New Economic Assessment Guidelines now)

• Critical infrastructure designation and prescribed project

declaration - enables the Coordinator General to “step in” and decide remaining licences and permits for Adani without public appeal or statutory judicial review

Adan ani i Carmic michae ael l Mine upda date te

• Major approvals received
• Some approvals remaining, e.g. for

Groundwater Plan

• Key issue remaining: $ finance – may

be internationally financed

• Already potentially in breach of

authority…

Lic icence to to Kill ill Re Repo port 2016 2016

• ACF and EDOs of Australia Report
• Key recommendation: more rigorous,

evidence based and precautionary approach to:

– threatened species – threatened communities – World Heritage – climate change – transparency and accountability

This material is for information purposes and is not legal advice.

Acla land Stag Stage-3 Ex Expansion

• n

Lan and Co Cour urt cas ase

Acla land Stag Stage-3 Ex Expansion

• n

Lan and Co Cour urt cas ase

• Existing mine
• Demonstrated significant failures in:

– responding to community complaints; – enforcing breaches of EA by DES; – effectiveness of conditioning of mines

• Key issues: groundwater impacts, noise, dust,

economic modelling, agricultural land and intergenerational equity

Ensu surin ing complia liance with th approva

• vals

ls

Our r work

• rk in law re

reform form and ed educati tion

• Law reform:

– Preparing submissions to legislative changes

• Legal education:

– Presentations to community groups on any issue of planning and environment law (like this one! ) e.g. changes to laws, understanding development processes effecting their area/concerns etc.

ED EDO Ql Qld’s publications

This material is for information purposes and is not legal advice.

Public participation in legal process – why is it important?

• 1. Improves decision making
• 2. Safeguards against corruption
• 3. Helps provide a voice for voiceless and

community stakeholders

The importance of court scrutiny

• Projects need to be lawful to proceed
• Qld and Cth laws give rights to citizens

to challenge merits and lawfulness of projects

• Courts are an independent forum,

free of politics to scrutinise development proposals and assessment materials and lawfulness

Your pow ers to be involved

• Help draft and shape laws
• Scrutinise decisions on

development proposals (submissions and court reviews/appeals)

• Help ensure compliance and

enforcement is undertaken

The community needs:

• Access to information
• Legal rights to be involved in developing

law and in decision making

• Legal rights to access a court or tribunal –

politics free venue for reviewing decisions

How you can access information

• Public registers under many Acts

– Info available via website, office, or on request

• Right to information Act - Qld
• Freedom of Information Act – Cth
• Ask the holder

Tips for making RTI/FOI requests

Be as specific as possible:

– name of document – description of document – date or date range it was made – author/s – any other information that might help identify it

Reduces cost and time in processing request You have the right to (internal and external) review

• f RTI/FOI decisions – worth it!

Commu Community leg legal p al par artic icip ipat ation

• 1. Written submissions:

a) development/approval applications instruments – state and local b) Law and policy reform (incl. planning schemes)

• 2. Third party appeals or reviews
• 3. Third party enforcement powers

Environmental law 101

• Local

– Planning schemes – Local laws

• State

– Legislation – Acts and Regulations – Rules and statutory guidelines – Policy

• Federal

– Environment Protection and Biodiversity Conservation Act – Other Acts, Regulations, rules and policies

Plan lanning laws laws an and envi viro laws laws

Planning Act 2016 (was Sustainable Planning Act 2009) Other potentially relevant laws:

• Nature Conservation Act 1992
• Vegetation Protection Act 1999
• Environmental Protection Act 1994

Override planning laws:

• State Development and Public Works Organisation Act 1971

(state development areas)

• Economic Development Act 2012 (priority development areas)

Ha Have you your s r say on y on p plans & & pol

• licies
• Local government planning instruments
• Regional plan – Wide Bay Burnett
• State Planning Policy - state interests

Pla lannin ing la law Ex Examp ample: : Assessing ing coas astal al i impac mpacts ts

• SPP: Trigger - coastal protection
• SDAP: Specific criteria SARA must assess

applications impacting coastal areas against

• Local planning scheme: Must reflect the SPP

policy, and any Regional Plan

Under erstan tanding local al p plan anni ning g scheme mes

• Legal instrument
• But not easy to uphold under performance based

planning

• Development applications must just meet the overall

purpose of the scheme / assessment benchmark

• Do not need to meet detailed acceptable outcomes
• r performance outcomes to be approved
• Can be approved without meeting some

benchmarks…

Apply lyin ing g local l plan annin ing g scheme mes

• The planning scheme must be read as a whole
• State laws (SPP/Regional Plan) may be considered

where not reflected in planning scheme

• Assessment benchmarks may be contradictory
• Not all assessment benchmarks have to be satisfied
• Only overall outcome needs to be satisfied…

‘performance based planning’

“Devel elopmen ent”

Very broadly defined. ‘Categories of development’ include:

• building work
• plumbing or drainage work
• operational work
• reconfiguring a lot
• making a material change of use of premises

http://hardyengr.com/wp-content/uploads/2014/05/urbandevelopment.jpg

Does es dev devel elop

• pme

ment nt n need eed a a per permi mit? t?

• May be ‘accepted’ or ‘prohibited’ – no permit
• Otherwise assessable
• ‘Categories of assessment’: code or impact

assessment

• Determined in planning scheme / Planning Reg

Have your say on development proposed

Impact assessable

– You can have your say! Publically notified, appeal available for properly made submitters – Assessed against assessment benchmarks and ‘any

• ther relevant matter’

Code assessable

– You can’t formally have your say – Assessed only against assessment benchmarks

Impact assessable development

Public Notification (s53 PA):

• Public notification methods in Development

Assessment Rules

• Must give public notice by at least —

a) a newspaper b) notice on the premises c) notice to the adjoining landowners.

Time periods for public submissions

• application includes a variation request—30

business days

• any other application—15 business days

Submi missions m must b be pr prope perly made made to

• be conside

dered AND t to

• gra

rant nt appe appeal al r right hts

– received within the time frame specified – signed by each person – name and residential or business address of all submission- makers – grounds, facts and circumstances relied on – 1 postal or electronic address for service for all submission- makers – is made to the correct entity e.g. the assessment manager for DAs

Good submissions will:

• Rely on facts and circumstances that focus on planning issues
• eg:
• consistency with the intent for the area
• whether there is demonstrable need
• any potential traffic and car parking issues posed.
• impacts on amenity e.g. noise, air quality, sunlight, green space.
• possible impacts on drainage and flooding in the surrounding area.
• Include any relevant evidence, studies, documentation in

support of the grounds raised in the submission.

Decisio ion perio iod

• Decision notice will be received by those who made a properly

made submission, either – after refusal decision; or – after applicant’s appeal period finishes/notification they won’t appeal received.

• May receive a Negotiated Decision Notice – where Applicant

made change representations during applicant’s appeal period

• Decision must include REASONS for decision

Not happy with the decision?

• You may appeal to the Planning and Environment

Court – only if you made a properly made submission

• Must file and serve Notice of Appeal within – 20

business days

• Appeal may be referred to mediation
• Time and resource consuming - Get legal advice

prior to appealing

Your rights - if developer appeals refusal or conditions

• You may become a co-respondent to an appeal

commenced by the developer

• You will receive a Notice of Appeal from the

Applicant

• You need to lodge a Notice of Election to co-

respond in the approved form - within 10 business days

Cost rules – planning appeals

General rule: each party to a P&E Court proceeding must bear the party’s own costs for the proceeding. Except, there is a discretion to order costs where:

• Proceeding is commenced primarily to delay or obstruct;
• Proceeding is frivolous or vexatious;
• There has been a default in procedural requirements etc…

To reduce any risk of an adverse costs order:

• seek legal advice as to grounds
• meet all Court time frames
• remain engaged and communicate with other parties

actively

Code assessable development

• No community rights to provide submissions or

appeal decision

• However, you may:

– Comment on a draft/amendment to a planning scheme, which declares when development will be code assessable (or impact/accepted); – Provide informal submissions to the assessment manager;

• r

– Apply for a declaration - if you dispute the legality of a decision made or proper process e.g. whether it should be assessed as a code assessable DA.

Broad power to seek a Declaration from the Court

Any person may seek a declaration in the P&E Court about, for example:

a) a matter done, to be done or that should have been done for the P&E Court Act or the Planning Act; or b) the interpretation of the P&E Court Act or the Planning Act; or c) the lawfulness of land use or development E.g. development should have been impact assessable, but was assessed as code assessable… Cannot seek declaration for Ministers directions and call in powers

Illegal development? Breach of conditions?

Notify local government and Department of Planning first. Any person may apply to the P&E Court for enforcement

• rders that require a person to—

(a) refrain from committing a development offence; and/or (b) remedy the effect of a development offence.

Get legal advice before commencing Court action

Pe Peop

• ple pow
• wer

r doe

• es work!
• rk!

LAST WEEK: Sunshine Coast community won an appeal against proposal for Bunnings in inappropriate location 2017: Gold Coast community won appeal against proposal for a quarry on key koala habitat and close to residential area YOUR community beat the Traveston Dam!

Ke Keys ys t to s

• success:
• Understand the law and your rights – EDO can help!
• Use the media – write letters to editor, feed them

stories

• Understand the politics
• Use the politics – write to local and state

representatives, consider billboards, election time…

• Build community: Spread the word, build alliances,

have a well connected group – support each other - it’s a long race sometimes…

• HAVE FUN!

How does the law help? …and how can you use it?

Tree ees pr prote tecte ted un under er var arious l laws aws

• Vegetation Management Act 1999

(VMA) / Planning Act 2016

• Nature Conservation Act 1992
• Environmental Protection Act 1994
• Local government laws
• Environment Protection and Biodiversity

Conservation Act 1999 (Cth)

Which tre rees are re prot rotected?

• Only native vegetation (however non-native trees can also be

protected for heritage purposes)

• Listed threatened and protected species have more protection
• Request a Vegetation Map from DNRM online
• Also check your local planning scheme

‘C ‘Cleari ring’ ’ under the VM VMA: A:

• remove, cut down, ringbark, push
• ver, poison or destroy in any way,

including by burning, flooding or draining; but

• does not include destroying standing

vegetation by stock, or lopping a tree.

Whe hen c can tree c clearing oc

• ccur lega

gally? ?

 If it is exempt from needing approval  If it is under a development permit  If it is under a self-assessable code  If other approvals are obtained or not needed (e.g. under NC Act or EPBC Act)

Exe Exempt cl clearing – st stat ate l law aw

• Clearing certain vegetation for an ‘urban

purpose’ in an ‘urban area’ on freehold land

• Residential clearing (e.g. for building a single

dwelling) on freehold land

• Clearing Category X vegetation on freehold

land – significant area in Qld

• PDA (Priority Development Area) - related

development

• May still need local government

approval!

Dev evel elop

• pme

ment nt p per ermi mit req equired

• Must be for a relevant purpose under VMA section

22A, e.g: – to ensure public safety – for relevant infrastructure activities and cannot be reasonably avoided or minimised – for clearing of encroachment – necessary environmental clearing

Loc Local gov

• vern

rnment prot rotections

• Planning schemes may provide protection against

tree clearing - Even where exempt under state law!

• Can protect single trees or area of trees
• Local laws not as effective as planning schemes
• May be code assessable or impact assessable –

affects your right to have a say!

• Have your say when planning scheme open for

comment!

Clearing needing development permit – Yo Your r right hts t to be invo volved

• Normally code assessable – no public submissions or appeal

rights

• Can be impact assessable – public submission and merit

appeal rights apply

• If should have been assessed, or breaches a condition, you can

seek in Court a: – declaration that clearing was illegal; or – enforcement order Notify Council/DNRM first!

Accepte ted d d dev evel elopme ment c t codes des

• For particular types of vegetation

/clearing activities in particular areas e.g. thinning or fodder in certain regions

• Do not need a permit
• Clearer must notify DNRME prior to

clearing

• Significant clearing has occurred

under codes in Queensland since introduction

Na Nature re Con

• nserv

rvation

• n Ac

Act

• Protects listed native plants and wildlife
• Offence to clear in protected areas e.g. national

park

• Flora survey, and clearing permit may be

required if possible protected plants on site

• Wildlife spotters and catchers may be

necessary

• Public has third party enforcement rights

under NC Act – but contact the DES first!

• Then get legal advice.

EPBC EPBC Ac Act

Must be:

– significant impact – on a matter of national environmental significance e.g. threatened species or community (or other); the koala in SEQ

• Must refer the action for assessment to DoEE
• Can get injunction if clearing without

necessary referral

Wh When is is a a sig significant im impact lik likely?

• ‘Real or not remote chance or possibility’ of the impact

enough - Not necessary to have a greater than 50% chance

• f happening
• Precautionary principle applies: A lack of scientific

certainty about the potential impacts of an action should not be used to justify a decision that the action is not likely to have a significant impact on the environment

• Significant impact guidelines, including some for specific

species

Offsets ts a allow s sign gnif ifica icant i t impacts cts t to

• ur e

environme ment… …

• Now very hard to say ‘no’ to

development

• No limits on what can be offset, e.g.

near endangered species

• Inadequate assessment of

‘offsetability’ prior to approval

• No scientific validity to offset ratio

required

• Very limited enforceability and

transparency of offset conditions

What hat can an I do do if if I thi think cle lear aring is is ill illegal?

• Act quickly!
• Take photos - document what is there and

clearing being undertaken

• Let your local government know ASAP
• Let DES and DNRME know ASAP
• Let The Wilderness Society and WWF know
• Seek advice from EDO Qld

If government t doesn sn’t t t takes a action tion?

– You may be able to take legal action in Court to stop the clearing, or get it remediated – Litigation is expensive and time consuming! Always get legal advice first!

Major r project jects

• Examples: mines, resorts,

major infrastructure…

• Often ‘coordinated projects’

– assessed by Coordinator- General

• Different assessment processes

to urban development

• Different community rights

available (often block out community…)

Objecting to

• Mines

Main permits:

– Mining Lease (tenure) – Environmental Authority (enviro, social and economic impacts)

• Anyone can object to ML and EA production applications in

Queensland (but not exploration)

• Gas – different, only EA available for public comment and

appeal, not tenure

This material is for information purposes and is not legal advice.

Objectin ting to mining lease ses

• Appropriate size and shape for the

activities proposed

• Financial and technical capabilities
• Sound land use management
• Public right and interest
• Appropriate land use taking into

consideration the current and prospective uses of the land

https://www.mining-technology.com/projects/capricorn-copper-mine-queensland/

Objecting t to Envi vironmental A Autho horities ( (EA)

• Must make a submission on the

EIS or could lose your rights to

• bject
• Might not notify EA application
• Draft EA will be sent to all

submitters

• Submitters can ‘elect’ to file an
• bjection to be heard in the

Land Court

This material is for information purposes and is not legal advice.

http://econews.com.au/53065/lib-nat-govt-approves-controversial-qld-coalmine-expansion/

The EIS EIS proc rocess

• EIS = Environmental Impact Statement
• EIS is not an approval but is used to inform the final

conditions of an Environmental Authority.

This material is for information purposes and is not legal advice.

What to

• say

y on

• n the EIS

EIS?

Examples:

• impacts on groundwater
• surface water/overland flow and flooding risks
• Erosion and soil degradation
• Dust and noise
• Impacts on flora and fauna
• Risks of contamination and pollution

Have these all been assessed (modelled) correctly?

This material is for information purposes and is not legal advice.

EIS EIS – other w ways to have y ve your ur say

• Require terms of reference establish

community reference groups on social, environmental and economic impacts

• Volunteer to become a community

representative on a CRC, particularly if you have a particular interest or expertise

Land and Cour urt t hear earing fo for mi mine

• Assessment of grounds raised in

submission/objection

• Can bring experts
• Can self-represent, or have lawyers
• Court makes recommendation only

– Director General DES = decides EA – Minister for Mines = decides ML

https://futurechallenges.org/local/food-not-coal/panoramic-view-of-an-open-pit-coal-mine-goonyella-queensland-australia/

Coor

• rdin

inate ted P Projects ts

• Coordinates EPBC and state assessment
• Coordinator General will prepare a final

Report on the EIS recommending conditions which must be imposed by DES/NRME

This material is for information purposes and is not legal advice.

Cth th: : Env nvironment Pr t Prote

• tect

ction and nd B Biodiversity Cons

• nservation A

Act ct 1999

Matters of national environmental significance (MNES):

• World heritage (Great Barrier Reef, Wet Tropics, Riversleigh

Fossil Sites)

• National heritage (Quinkan rock art)
• RAMSAR Wetlands (Bowling Green Bay –north of Ayr)
• Listed threatened species and communities (cassowary)
• Listed migratory species (whales, migratory birds)
• Nuclear actions
• Cth marine environment
• GBR marine park
• Protection of water resources from CSG and coal mining

EPBC EPBC Ac Act – ‘C ‘Con

• ntrol
• lled actions’

– ‘Controlled action’ will have a ‘significant impact’ on a MNES – Prohibition on taking a controlled action without approval – Proposed action referred to DoEE for determination – Invitation for public comment:

• Whether the proposed action has an impact on an MNES
• Can comment here on what the appropriate assessment process might be

(because no other opportunity to do so)

• Can comment that action is clearly unacceptable

EPBC EPBC Ac Act

Assessment process

– 6 tiers of assessment – accredited assessment process, referral information, preliminary documentation, public environment report, environmental impact statement (EIS), inquiry. – Bilateral agreement (Cth & Qld) – Cth relies on assessment by Qld if assessment process is an EIS under EP Act, State Development Act or Planning Act.

EPBC EPBC Ac Act - Yo Your ur rights hts to

• re

review

Approval

– No bilateral agreement on approvals – both Cth and Qld must make separate decisions – Right to review approval decision on legal grounds

• Must be a ‘person aggrieved’ (limitation for

environmental groups)

En Enforc forcement

• Keep an eye on approvals: EA and EPBC
• Notify government if breach
• You have:

– Powers to seek injunctions to stop activity – Powers to remedy breaches

Matte atters of Natio ational Environmental S Sig ignif ifica cance ce

• World Heritage - GBR
• National heritage places -

GBR

• Listed threatened species

and communities – melaleuca viridiflora community (broad-leaved tea-tree)

• Listed migratory species –

marine turtles, dugong

• GBR marine park - jetty

Coordinated Project – Lindeman Island

• May 2015 – declared a controlled action under EPBC Act

and a co-ordinated project under SDPWO Act

• State EIS assessment process
• June 2015 - Terms of reference open for comment
• Period to submit EIS extended
• 22 July to 4 September 2017 - Draft EIS open for public

consultation

• March 2018 - C-G approved
• Still needs EPBC approval

This material is for information purposes and is not legal advice.

Lindeman Island – What next?

• EPBC decision:

– can seek reasons for the decision; – may seek judicial review of the legality of the decision (not merits appeal)

• May need further state approvals – further
• pportunities to scrutinise

Ke Keys ys t to s

• success!
• Understand the law and your rights – EDO can help!
• Use the media – write letters to editor, feed them

stories

• Understand the politics
• Work the politics – write to local and state

representatives, consider billboards, election time…

• Build community: Spread the word, build alliances,

have a well connected group – support each other - it’s a long race sometimes…

• HAVE FUN!

Thanks for listening! Big thank you to our donors and supporters. Any questions?