Posted 13/4/11

logo edo

EDO Victoria eBulletin

No. 7 of 2011, 1 April 2011



In This Bulletin:


News & Commentary



New on Environmental Law Online



VCAT decision of interest






To make a donation in support of our work as the environment’s legal team, please visit




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.



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:








The Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) has taken the following action in response to breaches of the EPBC Act:

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:





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.




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.




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:, 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 For more details and further workshop dates, see our website.


Did you receive this bulletin from a friend or colleague? If so, maybe you should consider subscribing. The EDO Victoria eBulletin comes out at least fortnightly and contains the latest news on EDO activities and developments in the area of environmental law. To subscribe, send a request to be added to our list to


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 or to donate, please visit