When we started EDO Tasmania in 1995, our vision was to provide specialist legal services to support community involvement in environmental and planning decision making. Twenty years on, the achievements of the EDO have gone above and beyond what we ever imagined possible.
I’m enormously proud of the role we’ve played to make laws accessible. Whether through education materials, providing legal advice or representation, our services enable communities to effectively challenge poorly considered and unwelcome development, giving the environment the best chance of protection.
Over the past 20 years, we’ve seen time and time again how powerful a community with access to clear information and legal support can be.
– Roland Browne, EDO Tas President 1995 – 2016
Click here to read about highlights from the past 20 years.
Appeal of 4WD tracks decision to Full Court
On 22-23 August 2016, we represented the Tasmanian Aboriginal Centre (TAC) before Full Court of the Federal Court, seeking to uphold the decision by Justice Mortimer that stopped the re-opening of three 4WD tracks through the Western Tasmania Aboriginal Cultural Landscape (WTACL).
Both the Tasmanian and Commonwealth Governments have challenged Justice Mortimer’s earlier decision, arguing that the 4WD tracks do not require approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). They will also be asking the Full Federal Court to find that Justice Mortimer’s interpretation of “indigenous heritage values” was too broad and should be confined to identified hut depressions and seal hides. On their argument, the impact of tracks on the confined indigenous heritage values of the WTACL will not be significant.
EDO Tasmania will be arguing that opening the 4WD tracks is an action that will have a significant impact on the indigenous heritage values of the takayna / Tarkine coast and must not proceed without Federal approval.
Click here for a more detailed briefing document about this case.
The Full Court released its judgment on 16 September 2016, and invited the parties to make further submissions. Final orders are likely to be made by the end of October 2016.
4WD tracks in the Western Tasmania Aboriginal Cultural Landscape
EDO Tasmania represented the Tasmanian Aboriginal Centre Inc (TAC) in their application for an injunction to prevent the Tasmanian government from re-opening of 4WD tracks in the Western Tasmania Aboriginal Cultural Landscape. The tracks were closed in 2012 in recognition of unacceptable impacts on heritage values. The TAC is seeking a permanent injunction under the EPBC Act, arguing that the track opening will have a significant impact on the indigenous heritage values of the national heritage listed place.
On 23 December 2014, the Federal Court granted an interim injunction preventing the government from authorising any vehicle use of the tracks until the Federal Court determines the application.
From 12-16 October 2015, the Federal Court heard evidence and submissions regarding the significance of the area to the Tasmanian Aboriginal community and the consequences of allowing recreational vehicles into the area. The State government did not call any evidence. Instead, its case focussed on two issues: whether the decision to open the tracks (rather than the actual use of the tracks by individual drivers) was an “action” under the EPBC Act, and whether the indigenous heritage values protected by the heritage listing were limited to physical hut depressions, rather than broader landscape values.
On 1 March 2016, Justice Mortimer made orders declaring that the opening of the tracks was a “controlled action” that would have a significant impact not only on identified heritage sites but on the broad indigenous heritage values of the Western Tasmania Aboriginal Cultural Landscape.
TNC’s entitlement to a statement of reasons
On 10 March 2016, the Supreme Court ruled that the Tarkine National Coalition (TNC, also known as Save the Tarkine) was entitled to a statement of reasons for the Minister for Mines’ decision to grant mining leases for Venture Minerals’ Mt Lindsay and Livingstone mines. The Minister had refused to provide reasons, arguing that TNC was a not a “person aggrieved” by the decision, within the meaning of the Judicial Review Act 2000 (that is, TNC did not have “standing” to request reasons).
Justice Wood was satisfied that a decision authorising mining in the Tarkine would clearly adversely affect TNC’s interests and ordered the government to provide the statement of reasons.
The Tasmanian Government appealed against this decision. The appeal was heard on 19 August 2016, and only one week later the Full Court returned a unanimous judgment upholding Justice Wood’s earlier decision. To read more, click here.
Mine waste in the Tarkine
In 2014, EDO Tasmania represented the Tarkine National Coalition (Save the Tarkine) in their challenge to a decision of the EPA Director to amend permit conditions regulating storage of potentially acid-forming waste at Shree Minerals’ Nelson Bay River mine. The Director had authorised temporary above ground storage of waste, after it was revealed that the mine would produce approximately 20 times more waste than originally approved. However, in considering the original application, the EPA Board had expressly ruled out above ground storage options due to the risk of contamination.
On 17 December 2014, the Supreme Court held that the Director’s decision “fundamentally changed” the mine conditions. Justice Estcourt held that the decision went beyond the powers granted to the EPA Director under the Environmental Management and Pollution Control Act 1994 and was therefore invalid.
Cable car on Mount Wellington
EDO Tasmania represented Residents Opposed to the Cable Car in the Tasmanian Planning Commission hearing regarding proposed changes to the Mt Wellington Management Plan. The proposed amendment, initiated at the request of the Mt Wellington Cableway Company, sought to increase the size of the Pinnacle Specific Area on the summit of Mt Wellington / kunanyi to facilitate the construction of a cable car.
The Commission report was very critical of the Wellington Park Management Trust’s process in relation to the amendment. In particular, the Commission found that the Trust’s responses to representors’ concerns in relation to the following issues were inadequate:
- The proposed amendment would not further the vision and objectives of the Management Plan
- Failure to provide reasons for the proposed amendment
- Development in proposed the extended Pinnacle is contrary to Management Plan and will adversely affect conservation values
- Failure to adequately explain the choice of the proposed new boundary areas, particularly given the Pinnacle Specific Area had already been considered and extended in the 2013 Management Plan review
- That Wellington Park is a special place in which a cable car and increased development area on the summit would be inappropriate
Read the Commission’s decision here.
Note: The Wellington Park Trust subsequently reviewed the representations and approved the proposed amendment.
Saving Ralphs Bay
In 2008 -2010, EDO Tasmania represented community group, Save Ralphs Bay Inc, in hearings regarding a proposed 460-lot canal estate development in Lauderdale, the first canal estate proposal in Tasmania. There was widespread community opposition to the development proposal, with concerns including:
- Development in a declared conservation area, recognised for its foreshore and marine habitat values
- Destruction of habitat for resident and migratory shore birds
- Loss of threatened saltmarsh vegetation
- Dredging of heavy-metal laden sediments
- Impacts on the threatened Spotted Handfish through sedimentation and reduced water quality
- Removal of recreational areas, including one of Tasmania’s premier windsurfing locations
- Inconsistency with the State Coastal Policy 1996
After more than four weeks of hearings, the Tasmanian Planning Commission determined that the proposal was “inherently unsustainable” and recommended that it be refused. The Premier subsequently supported the recommendation and refused to grant a permit for the development.
The Lauderdale, South Arm Peninsula and wider Tasmanian community was extremely concerned when, in 2004, Tasmania’s first canal estate development was proposed in the Ralphs Bay Conservation Area at Lauderdale. In opposing the development, Save Ralphs Bay Inc (SRB) and the community faced the multi-billion dollar Walker Corporation. The playing field could not have been more uneven!
EDO Tasmania gave excellent and highly valued assistance to the Save Ralphs Bay campaign over many years, putting in an incredible amount of work and ultimately helping to present the best possible case to the Tasmanian Planning Commission in defence of the environmental and community values of Ralphs Bay.
From the outset, when community members were anxious about how to proceed, EDO Tasmania provided clear explanations about possible legal options and opportunities for community input into the assessment process. EDO Tasmania helped to guide us through the various submission processes, identified key issues and liaised with expert witnesses to address those issues.
During the month-long Planning Commission hearings, Jess’s calm and professional coordination enabled SRB to present the case against the development with great efficacy. With EDO Tasmania’s assistance, SRB made a very significant contribution to the assessment process. We were delighted when the Commission recognised that the proposal was ‘inherently unsustainable’ and resoundingly recommended that it be rejected.
– Jane MacDonald, former Communication Coordinator for Save Ralphs Bay Inc
The long campaign to Save Ralphs Bay:
Protecting Agricultural Land
In 2013, EDO Tasmania represented a local resident in rural northwest Tasmania who had objected to proposed amendments to the Devonport and Latrobe Planning Schemes to rezone approximately 134 hectares of agricultural land to create an industrial estate. The resident was concerned that allowing an industrial estate on low-lying land ignored the risks of rising sea levels, and would lead to an unacceptable loss of viable agricultural land in the area.
Despite strong Council support for the proposal, the Tasmanian Planning Commission rejected the amendment on a range of planning grounds, including:
- The amendment was inconsistent with the regional plan, which demonstrated there was already sufficient industrial land in the area to accommodate reasonably foreseeable demands.
- The amendment failed to adequately address climate change hazards.
- Converting irrigable land to a non-agricultural use was contrary to the objectives of the Protection of Agricultural Land Policy 2009.
Click here to read the decision.
Tasmanian Devils in the Tarkine
In 2013, EDO Tasmania represented the Tarkine National Coalition in its appeal against approval of Venture Minerals’ Riley Creek iron ore mine in the Tarkine. The Tarkine National Coalition was concerned that the proposed mine would have a significant impact on local populations of threatened Tasmanian Devil, particularly as a result of increased road fatalities associated with mine traffic. The TNC also raised concerns regarding the adequacy of proposed water and erosion control measures at the mine site.
The Tribunal dismissed the appeal, however more stringent conditions were imposed requiring stricter erosion control and implementing a range of measures to minimise impacts on the Devil.
Click here to read the decision.
Protecting cultural heritage
EDO Tasmania recently represented Australian Institute of Architects (the Institute) in its appeal against a decision to remove a residential dwelling in Taroona, built in 1962, from the Tasmanian Heritage Register (the Register). The property had been listed in the Register in 2001 on the grounds that it:
- demonstrates characteristics of a late 20th Century organic house;
- demonstrates a high degree of creative achievement; and
- has a special association with the work of prominent Tasmanian architect, Ray Heffernan.
The Institute was concerned to retain the building on the Register as an example of the evolution of modernism and a key building in Tasmania’s architectural history. By majority, the Tribunal concluded that the property was of cultural heritage significance and should remain on the Tasmanian Heritage Register. Click here to read the decision.
The Institute was delighted with the decision and the recognition of the significant contribution modern architecture makes in shaping our heritage.
The Institute is extremely grateful for the enormous contribution made by EDO Tasmania in highlighting and protecting the heritage values of this property, along with other properties that may be affected by this ruling in the future.