Case Notes

The Wilderness Society South Australia Inc v Department of the Environment (Freedom of Information)

On 30 August 2016, Deputy President Katherine Bean of the Administrative Appeals Tribunal (AAT) handed down her judgment in The Wilderness Society South Australia Inc v Department of the Environment (Freedom of Information).

The case concerned certain documents requested pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act). The documents related to a referral by BP Developments Australia Pty Ltd (BP) under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) concerning a proposed offshore drilling program in the Great Australian Bight. The Wilderness Society South Australia Inc (TWS SA) sought to review the decision of the Office of the Australian Information Commissioner (Information Commission) to uphold the decision of the Department of the Environment (Department) not to give TWS SA full access to the documents.

The case highlights a difficulty for environmental interest groups seeking to obtain information which, a corporate entity argues, is of commercial value and therefore should be withheld pursuant to the FOI Act. Environmental groups will need to obtain evidence that the information is not of commercial value and won’t be destroyed or diminished if released. There are obvious practical difficulties of obtaining such information from similar corporates given that an environmental group
does not have precise details of the information they are seeking to obtain and the likelihood that similar corporates would not assist with the collection of relevant evidence.


This article first appeared in Australian Environment Review Volume 31 No 9 from page 329. It may be cited as (2016) 31(9) AE 329.

Port Adelaide Service Station Development

Port Adelaide Residents Environment Protection Group (PAREPG) and City of Port Adelaide Enfield and OTR 97 Pty Ltd  - ERDC no. 308 of 2013 [2014] SAERDC 27

The Full Bench of the Environment Resources and Development Court heard eight days of argument and evidence in this third-party planning appeal. The development application was for  an integrated use shop and service station complex with ancillary vehicle/dog wash bays.

EDO(SA) represented PAREPG on  three procedural grounds of appeal. Two members of PAREPG presented its argument and evidence on the planning merits ground of appeal. In July, the Court determined that:

  1. On the procedural grounds of appeal, the Council had failed to comply with the time limits, contained in section 38 of the Development Act 1993 (and the relevant Regulations), for: public notification of the development proposal; adjacent land owner/occupier notification of the development proposal; and notification to representors of the hearing, by the Council, of representations made in relation to the proposed development.
  2. It would not, pursuant to section 33 of the Environment Resources and Development Court Act 1993, be unjust or inequitable to excuse these failures to comply with the relevant time limits, and, therefore excused the failures.
  3. In relation to the planning merits, the proposed development was acceptable, subject to the varying of the conditions imposed by the Council.

EDO Comment

From the public interest perspective, it is disappointing that the Court, in its judgement, made little or no comment on (a) The failure of the Council to meet its statutory notification and consultation obligations; (b) The onus on the Council to satisfy the Court that it would not be unjust or inequitable to exercise the discretion; (c) The public interest in the proper administration of the development assessment system; (d) The failure of the Council  authority to keep any records of time, date or place of postage of notices or any copies of the notices; and (e) The evidence of the relevant authority's witness that he could not confirm whether any of the notices to adjacent land owners/occupiers were actually posted (contradicting his written statement).   

Judicial Review - Olympic Dam Expansion

In 2012 the EDO  filed an application in the Federal Court on behalf of Mr Kevin Buzzacott challenging the Commonwealth Environment Minister's 2011 approval of the proposed expansion of the Olympic Dam mine by BHP Billton. At the time the proposal was to transform the mine to an open cut pit approximately 1 km deep and 4 km wide. The Court application questions the legal process followed in approving the proposed expansion, and if successful it may have wider significance for other similar approvals in Australia. The  application seeks orders from the Federal Court that the Minister's approval be reviewed and, subject to the Court’s findings, to be set aside and referred back to the Minister for further consideration according to the law.

Media release Olympic Dam Expansion

Originating Application filed copy 130212

Affidavit K Buzzacott 150212

Whyalla Red Dust Case

Red Dust Report

This report highlights the problems caused by fugitive red dust emission from the OneSteel (formerly BHP) steel works in Whyalla. The focus of the report is on monitoring and compliance arrangements that need to be put in place as part of the EPA's review of the OneSteel licence.

 A very dirty story - Whyalla Red Dust Action Group  

OneSteel Indenture Bill 2005

What's wrong with the proposed OneSteel Indenture Bill 2005?

Read Mark Parnell's analysis. (external link to Whyalla Red Dust Action Group Inc. web site)

Media Release

Government Prepares to Sweep Whyalla Red Dust Under the Carpet!

Read media release

EDO wins Coffin Bay land clearing case

The EDO has chalked up another important win in the Environment Resources and Development Court. The case involved an appeal by seven Coffin Bay residents against a local council approval for an “International Health Clinic” and 36-lot residential subdivision on pristine coastal bushland on the outskirts of Coffin Bay township on Lower Eyre Peninsula. Full text of judgement

The appellants argued that the proposed development would:

1. Irreversibly destroy important habitat;
2. Over-exploit precarious groundwater resources;
3. Increase the bushfire hazard to the township; and
4. Undermine proper town planning procedures for determining the appropriate scale of development for the site.

Ultimately, the case was decided on the fourth ground (town planning). The subject land was in a “Deferred Urban” zone and the developer argued that the time was now right to develop the land. Much of the developer’s argument was based on an alleged shortage of land in Coffin Bay and that the subject land was the next logical extension of the township.

In rejecting this argument, the Court held that the proposed development was “premature” and that only small-scale development should be considered until a proper study had been undertaken to determine how best to balance the competing demands of native vegetation protection, water availability, bushfire protection and urban development.

Whilst not strictly necessary, the Court took the opportunity to comment on some of the specific evidence relating to native vegetation and water resources. The Court accepted the evidence of the 3 expert witnesses who agreed that the native vegetation that covers the site was in very good condition and had not been adversely affected by weeds, feral animals, fire or human impacts, unlike the nearby Coffin Bay National Park. However, the Court did not offer any opinion as to the importance of preserving the vegetation, preferring to leave that task to the town planning review it believed was necessary to determine the best ultimate use of the Deferred Urban zone.

In relation to water resources, the Court identified that there was much uncertainty about how much water was likely to be available in the 3 year time frame by which this development would be completed. The Court did not believe that it was appropriate to rely on SA Water assertions that a solution to the current water problem would necessarily be found by then. Again, the undertone of this line of reasoning is that important strategic planning decisions should not be undermined by the premature approval of individual ad hoc development applications.

Mark Parnell

A copy of the judgment is available on the ERD Court website.