Enforcing Environmental Laws

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Wendy Hodge
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1 Enforcing Environmental Laws Byron Bay 26 February 2015 Nina Lucas Outreach Solicitor Emily Ryan Outreach Solicitor

2 About EDO NSW Legal centre - public interest environmental law Independent Legal Advice & Casework Policy & Law Reform Community Legal Education (Outreach) Indigenous, Scientific & International programs Australian Network of EDOs

3 Free initial legal advice, website, fact sheets and updates Free Environmental Law Line Monday-Friday Legal guides, fact sheets and other resources Free weekly ebulletin updates on environmental law, policy and decisions

4 Support our work Your support for EDO NSW will help us to: Provide legal advice and representation Promote changes to environmental laws Provide community legal education Donations are tax deductible

5 Presentation overview A decision has been made what next? Legal challenge Monitoring & enforcing environmental laws Local case studies: Ewingsdale seniors development Belongil rock wall West Byron Additional factors to consider Image: Howard Lake

6 Information, not advice The information contained in this workshop is a guide only and is no substitute for legal advice relating to your particular issue. If you need legal advice about your particular issue, please call our Environmental Law Line.

7 A DECISION HAS BEEN MADE WHAT NEXT?

8 DECISION Legal challenge? Yes No Judicial Review Merit Appeal Monitoring & enforcement KEY QUESTIONS

9 LEGAL CHALLENGE

10 Can the decision be challenged in Court? Act quickly & seek legal advice Merit Appeal within 28 days of decision Judicial review within 3 months of decision

11 Merit appeal: Warkworth coal mine expansion Image: Warkworth coal mine John Krey

12 Judicial Review: The Tumblebee Regent Honey Eater

13 MONITORING & ENFORCING ENVIRONMENTAL LAWS

14 DECISION Legal challenge? Yes No Judicial Review Merit Appeal Monitoring & enforcement

15 Key Questions What has been approved? Who made the decision? What are the limits of approval?

16 Key Questions What information can I access? Who should I contact? What powers do I have to enforce the law?

17 1. What has been approved? There may be one or a number of approvals for a single project: Development consent Water licence Pollution licence Property Vegetation Plan or development consent to clear native vegetation Aboriginal Heritage Impact Permit

18 2. Who made the decision? Government - which Department or Minister? Minister for Planning PAC EPA Environment Minister Office of Environment and Heritage Office of Water Local Council Local Land Services

19 3. What are the limits of approval? Are there conditions on the development consent? Limits on noise, dust, truck movements etc. Construction hours Offset areas required to be established Completion date Are there limits on the types or levels of pollutants that can be discharged? Are there limits on the amount of water that can be taken? Are there no-go areas or limits on development designed to protect heritage?

20 4. What information can I access? Website of the relevant approval body (Department of Council) Public registers pollution licences, clearing permits, major project approvals, etc. Informal requests - Freedom of Information Officer Formal requests for government information (fee) Freedom of Information laws (Federal level) GIPA laws (State/local level) Assistance Office of the Australian Information Commissioner Information and Privacy Commission

21 5. Who should I contact? See step 2. - identify the relevant authority Local council Planning Department EPA Office of Environment and Heritage Office of Water Federal Environment Minister Report the suspected breach. Many authorities have hotlines you can call to report breaches. Keep a record of the contact as you may need this later on (copies of letters, times of calls and who you spoke to). Request the authority to take action and keep you informed of any action they do take.

22 6. What power do I have to enforce the law? The responsible authority may take investigate the allegation and take enforcement action, but they cannot be forced to. If the responsible authority fails to take action, you may be able to bring a case to enforce the law. This is known as third party enforcement action.

23 Civil enforcement: Maules Creek coal mine Image: Phillip Spark

24 Civil enforcement: Georges River pollution Image: Woolwash by Ken Hall, Australian Photography Tours (copyright)

Evidence gathering You will need to be able to support your claims with evidence photographs and videos collecting physical evidence such as

25 Evidence gathering You will need to be able to support your claims with evidence photographs and videos collecting physical evidence such as water samples note-taking collecting documentation relevant to the issue Legal research Expert reports Don t trespass Image: Michael L. Baird

26 LOCAL CASE STUDIES

27 Belongil Beach rock wall Image by: Richard Rydge

28 Key Questions 1. Legal Challenge? 2. What has been approved? 3. Who made the decision? 4. What are the limits of approval? 5. What information can I access? 6. Who should I contact? 7. What powers do I have to enforce the law?

29 Ewingsdale seniors housing development Image: Andrew Thomas

30 Key Questions 1. Legal Challenge? 2. What has been approved? 3. Who made the decision? 4. What are the limits of approval? 5. What information can I access? 6. Who should I contact? 7. What powers do I have to enforce the law?

31 Judicial review: Ryan v Minister for Planning & Lismore Council

32 West Byron

33 Key Questions 1. Legal Challenge? 2. What has been approved? 3. Who made the decision? 4. What are the limits of approval? 5. What information can I access? 6. Who should I contact? 7. What powers do I have to enforce the law?

34 ADDITIONAL FACTORS TO CONSIDER

35 Incorporate an environmental group Image: Byron Shire News

36 Speaking out in public & defamation Defamation is a civil action where a person or entity seeks damages for loss of reputation from someone who has published defamatory material about them. 3 aspects to defamation publication identification damage to reputation. Manage defamation risk Likely to damage reputation? Defences? Get independent advice before publishing

37 Holding decision-makers to account Auditors-General Independent Commission Against Corruption Ombudsmen The Courts

38 SUMMARY

39 KEY POINTS TO TAKE AWAY Find out whether the approval can be legally challenged Merit appeal Judicial review Ask yourself the 6 key questions Monitor the development to ensure compliance with the consent (conditions and any relevant licences). This may require: Access to approvals any reports released by the developer independent evidence to establish a breach (photographs etc.)

40 KEY POINTS TO TAKE AWAY Report breaches to the consent authority and regulatory authorities e.g. Council and the Department of Planning and Environment Report any unauthorised harm to native plants or animals to the Office of Environment and Heritage Ph You can take third party enforcement action Consider campaigning, forming a group, non-legal action, Ombudsmen etc

41 DECISION Legal challenge? Yes? No? Judicial Review Merits Appeal Monitoring & enforcement

Free initial legal advice, website, fact sheets and updates Free Environmental Law Line Monday-Friday 1800 626 239

42 Free initial legal advice, website, fact sheets and updates Free Environmental Law Line Monday-Friday Legal guides, fact sheets and other resources Free weekly ebulletin updates on environmental law, policy and decisions

43 Support our work Your support for EDO NSW will help us to: Provide legal advice and representation Promote changes to environmental laws Provide community legal education Donations are tax deductible

Planning and development

Planning and development 2016 Information, not advice The information contained in this workshop is a guide only and is no substitute for legal advice relating to your particular issue. Session overview