Posted 13/4/11
EDO Victoria eBulletin
No. 7 of 2011, 1 April 2011
In This Bulletin:
News & Commentary
New on Environmental Law Online
EPBC Act
VCAT decision of interest
Jobs
Fundraising Officer, EDO Victoria – closing 18 April
Solicitor, EDO NSW – closing 15 April
Events
To make a donation in support of our work as the environment’s legal team, please visit www.givenow.com.au/edovic
NEWS & COMMENTARY
EDO court action confirms that costs threat continues to be a barrier to meritorious public interest litigation
– by Elizabeth McKinnon, EDO lawyer
In theory everyone has equal access to the courts. In practice,
access is far from equal, not only because just getting a case to court is expensive,
but because anyone unsuccessful in court proceedings runs the risk of being ordered
to pay the other side’s legal costs. This rule creates an unequal playing field
that favours well-resourced governments and large corporations and disadvantages
individuals who want to vindicate their rights or organisations who wish to purse
public interest matters.
The EDO and others have been advocating for some time for changes to court rules
to allow an early up front determination that costs will be limited or capped. Such
an order (usually referred to as a Protective Costs Order, or a ‘PCO’) would go
a long way to creating a level playing field.
Perhaps unsurprisingly, governments have not really demonstrated themselves open
to the reforms necessary to implement these changes. In the face of this reluctance,
the EDO is committed to testing whether such opportunities are available can be
found within courts’ existing discretion over legal costs.
Late last year, the EDO filed an action in the Supreme Court on behalf of two individual
protesters, Chris Heislers and Stephen Cannon, seeking review of the decision of
the Victorian Government to enter into a Memorandum of Understanding (‘MoU’) that
governed the management of protesters at the site of the desalination plant construction
near Wonthaggi, Victoria. This MoU allowed for the transfer of private information
on protesters collected by the government bodies to the private consortium building
the plant, AquaSure, raising what the EDO, our clients and many others see as significant
privacy and other human rights issues.
Neither Chris not Stephen stood to gain any benefit to their private interests,
regardless of the outcome of the case; it was wholly in the public interest. Being
individual plaintiffs with homes and assets, they were clear from the outset that
they could not continue with the proceeding without orders from the court protecting
them from adverse costs orders in the event that they were unsuccessful. For that
reason, Chris and Stephen applied for a PCO up-front, which, if granted, would have
been the first of its kind in Victoria and a big step towards access to justice
for public interest litigants.
The Department of Sustainability and Environment, as a defendant to the proceeding,
chose to vigorously defend the case and mounted an application to strike out the
proceedings. The costs of these procedural skirmishes can be substantial. Unfortunately,
in this case the Supreme Court did not agree with submissions made for Chris and
Stephen that the costs issue needed to be dealt with first if they were not to be
shut out of the process.
Chris and Stephen found themselves in the impossible position of incurring substantial
costs and exposing themselves to significant financial risk in preparing for and
arguing the issues raised in the strike-out application, without knowing whether
the Court will in fact make a PCO, and whether any PCO made would apply to the strike-out
motion. In other words, the plaintiffs faced exposure to the risk of the other parties’
costs of arguing substantive matters over a two-day hearing; a situation that they
had made clear was untenable from the outset of the proceedings. It was the very
situation that their PCO application was intended to avoid.
In the circumstances Chris and Stephen adopted the only rational course and recently
accepted an offer from the defendants to walk away from the case. This means their
entitlement to a PCO will not be determined, and nor will they have a chance to
test the legality of the sharing of government information about protesters with
the private developer of the desalination plant.
There will be other opportunities to test the availability of Protective Costs Orders
and the EDO and others are committed to pursuing these. However, the case demonstrates
that this is really an area that requires legislative reform. You can find out more
about PCOs and the reforms that are necessary in our 2010 report ‘Costing the Earth?’,
available in the law reform section of our website (PDF, 369KB).
Carbon Farming Initiative Bill Inquiries – comments due 8 April and 13 April
The Carbon Credits (Carbon Farming Initiative) Bill 2011 was introduced
into Parliament last week. This Bill follows consultation with the Department of
Climate Change and Energy Efficiency (‘DCCEE’), which has been working on the design
of the Carbon Farming Initiative ('CFI') since August 2010, and also consultation
on the draft legislation in January 2011. There have been a number of important
changes to the legislation since then and there are two Inquiries being conducted.
The EDO has published an Issues Paper about the CFI to assist the community in preparing
submissions. The Issues Paper is available in the law reform section of our website.
For more information and how to make a submission to the Senate Standing Committee
on Environment and Communications Legislation, see the
Senate Committee website. Submissions are due 8 April 2011.
For more information and how to make a submission to the House of Representatives
Climate Change, Environment and the Arts Committee, see the
CCEA
website. Submissions are due 13 April 2011.
VCAT Major Cases List suspended
The VCAT Major Cases List has been suspended from 18 March 2011,
due to lack of funding.
The Major Cases List was established in May 2010 to fast-track the appeal process
for financially large developments (over $5 million) by having a hearing within
12 weeks of the commencement of the proceeding, and a decision within 16 weeks.
As previously reported in the e-Bulletin, the EDO was aware that this rapid turnaround
caused difficulties for regional objectors participating in such hearings. VCAT
is now considering new ways to fund the continuance of the Major Cases List in the
future.
To read the announcement, visit the VCAT website.
Product Stewardship Bill introduced – comments due 6 April
The Product Stewardship Bill 2011 was introduced into Parliament
on last week and is now under consideration by the Senate Standing Committee on
Environment and Communications.
The Bill proposes a national framework for managing the environmental, health and
safety impacts of certain products, including televisions and computers. It aims
to reduce hazardous substances, avoid and reduce waste, and increase recycling and
resource recovery. The framework provides for voluntary, co-regulatory and mandatory
product stewardship.
A summary of the Bill is now available on Environmental Law Online.
For more information and details of how to make a submission, see the
Senate Committee website. Submissions are due 6 April 2011.
Bushfire Planning Provisions Team review
The Department of Planning and Community Development has established the Bushfire Planning Provisions Team to respond to the planning and building recommendations outlined in the 2009 Victorian Bushfires Royal Commission. For more information about their review see the information sheet ‘Planned changes to the Victoria Planning Provisions and planning schemes’ available from the DPCD website (PDF, 321KB).
Audit report on environmental management systems in government released
The Commissioner for Environmental Sustainability (CES), Professor
Kate Auty, has tabled in Parliament 'Strategic Audit Report: Structures for sustainability
– Environmental management systems in the Victorian Government 2011'. The report
examines the implementation of environmental management systems by government departments
and agencies. The report also discusses the characteristics of organisational structures
and organisational cultures that can contribute to successful environmental management.
To read the report visit the
CES website.
NEW ON ENVIRONMENTAL LAW ONLINE
Environmental Law Online (‘ELO’) is a resource developed by the
Environment Defenders Office to provide people with a broad range of information
on environmental law in Victoria, at no charge.
Check out the following recent additions to ELO:
EPBC ACT
Enforcement
The Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) has taken the following action in response to breaches of the EPBC Act:
The Minister for the Environment issued a remediation determination, requiring Singleton Council to spend $100,000 over five years to repair damage caused by its unauthorised land clearing of part of a critically endangered ecological community in the Hunter Valley. The ecological community was protected under the EPBC Act.
Australian Rail Track Corporation entered into a binding agreement, known as an Enforceable Undertaking, with DSEWPaC, after it was found to have cleared land containing endangered flora species and ecological communities protected by the EPBC Act without approval. The ARTC will have to find suitable offsets and remediate the site, train its contractors and staff on species protection and identify other protected species along the rail corridor.
For more information see the media releases on the DSEWPaC website.
Notices of interest
Public comments are invited on the following Victorian referrals made under the EPBC Act:
Banyule Flats Sports Field Lighting Upgrade – Banyule Rd, Viewbank
Banyule City Council intends to upgrade the sports field floodlighting at the
Banyule Flats North and South Grounds, which may result in light spill onto
the adjacent Banyule Flats Reserve, a swamp and wetland area of State Significance.
Comments due: 4 April 2011·
Glendinning Creek Bridge Replacement – Cavendish-Glendinning Road, near Cavendish
Southern Grampians Shire Council proposes to replace the existing Glendinning
Road Bridge over the Glendinning Creek with a new concrete bridge, which may
impact on flora and fauna in and around the Creek.
Comments due: 5 April 2011·
VCAT DECISION OF INTEREST
Time for objectors to seek reviews in VCAT
LPD Property Group Pty Ltd v Moreland CC
In this matter, Council approved a development subject to a condition
requiring the building height to be reduced by three storeys. The objectors understood
that this was pursuant to an agreement between the permit applicant and the Council
and did not seek review of the decision to issue the permit.
After the time for objectors to commence review proceedings had expired and Council
had issued the permit, the permit holder appealed against the decision. Objectors
tried to seek review of the issue of the permit in VCAT.
VCAT found that the objectors could not apply for review of a decision to issue
a permit after the permit has been issued. For a summary of the decision see
Environmental Law Online.
JOBS
Fundraising Officer, EDO Victoria – closing 18 April
The EDO needs an experienced not-for-profit fundraiser to raise
our profile and income. Join the environment's legal team!
As Fundraising Officer, you will help us implement our Marketing, Communications
and Fundraising Strategy. You will have great skills, and experience in a similar
role in an environmental NGO or other not for-profit organisation.
The position is for 2 to 3 days per week. Hours and days of work are negotiable.
Find out more: For a full position description including selection
criteria and how to apply, visit our website.
Applications close 5pm, Monday 18 April 2011.
Solicitor, EDO NSW – closing 15 April
EDO NSW seeks a solicitor with at least two years’ experience in
administrative and/or environmental law to work as part of the litigation team,
based in Sydney. For a full position description including selection criteria and
how to apply, visit the EDO NSW website.
Applications close 5pm, Friday 15 April 2011.
EVENTS
EDO Regional Seminar, Bendigo: The Carbon Farming Initiative – will it work for you?
Wednesday 20 April 2011, 5.30-7.30pm, RL Campbell Theatrette, Bendigo
Library
The Federal Government is currently introducing the Carbon Farming Initiative (CFI)
- a voluntary carbon offset scheme for the agriculture, land use and forestry sectors.
If you own or manage land or livestock, this scheme offers you the chance to reduce
carbon, improve biodiversity and make money all at the same time. But will it? If
not, what can you do about it?
To learn more, come and hear our panel of government and other expert speakers explain
what the CFI is, how it needs to be changed, and what you can do about it. EDO lawyers
will also be on hand to answer your questions.
Please note: This seminar is free but RSVPs are essential. Book now:
edovic@edo.org.au, tel 8341 3100 (Melbourne callers)
or 1300 336 842 (regional callers).
VCAT Planning & Environment Appeals Workshop – 27 April 2011
The next VCAT Planning & Environment Appeals workshop will be held
at the 60L Green Building on Wednesday 27 April 2011, 5.30pm–7.30pm.
Individuals and community-based conservation groups can learn how to most effectively
participate and represent themselves in planning and environment matters before
VCAT. This two-hour workshop, presented by an EDO lawyer, gives members of the community
practical and legally-focused information about VCAT proceedings and hearings with
plenty of opportunity and encouragement for questions and participation.
RSVP: EDO Victoria (03) 8341 3100 or edovic@edo.org.au.
For more details and further workshop dates, see our website.
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The Environment Defenders Office is an independent, not for profit, community legal service, specialising in public interest environmental law. With your support we can provide access to justice for people fighting for an environmental cause on behalf of their community. To join the EDO, please go to edo.org.au/edovic/membership.html or to donate, please visit www.givenow.com.au/edovic