Previous Cases

Environment Victoria: renewable energy and coal allocation FOI case

We acted for an appeal in VCAT against a decision by the Department of Primary Industries not to release documents about coal allocations and renenwable energy decisions, such as the decision to reduce the premium feed-in tariff for solar energy.

As a result of the request, made under the Freedom of Information Act, many documents about these government decisions came to light. In addition, we were partially successful in the VCAT case. The case set an important precedent on what documents can be withheld from public view on the basis that they were prepared for a Minister on an issue that would be considered in Cabinet.

See the VCAT decision.

Friends of the Surry: coastal protection case

The EDO acted for the Friends of the Surry in a case about the impacts of climate change and coastal erosion on coastal development.

Friends of the Surry objected to several proposed housing and subdivision developments in Narrawong, on the south-west coast of Victoria. Modelling also showed that most of the development sites would be submerged in 60-90 years as a result of the impacts of climate change, including sea level rise, as well as coastal erosion. Friends of the Surry also had evidence that all of the development sites were on primary dune systems that are supposed to be protected under Victorian planning law. 

The Minister for Planning changed the planning schemes applying to these developments 3 days before the VCAT hearing. As a result, Friends of the Surry were denied the opportunity to put their evidence and arguments to the Tribunal and have the decision independently scrutinised. For more information, read our blog about the Minister's decision.

Western Region Environment Centre: Bacchus Marsh landfill VCAT cases

We acted for Western Region Environment Centre in 2 cases in VCAT about a landfill and brown coal mine in Bacchus Marsh. The first case was an appeal against the EPA's refusal to grant access to documents under the Freedom of Information Act that related to an application for an exemption from EPA licensing laws made by the landfill. These proceedings settled, with the client receiving all the documents they sought. The second case involved a works approval application from the EPA for works at the landfill. Again, the proceedings settled and the clients got a series of conditions on the works approval that minised the impacts of the landfill on the environment and local community.

We think this case demonstrates the value of public participation in environmental decisions - see our blog on this issue.

Lisa Caripis: protestor privacy case

In 2010, Ms Caripis participated in the 'Switch off Hazelwood, Switch on Renewable Energy' protest at Hazelwood Power Station in Morwell. The action was peaceful and incident free. A large number of Police attended the protest and filmed and photographed protestors. 

After the protest, Ms Caripis wrote to the Victoria Police, asking them to destroy any information on her that they had collected. The Police refused.

Ms Caripis pursued her matter in VCAT, with EDO legal representation, arguing that the Police had breached the Information Privacy Act and the Charter of Human Rights in collecting and retaining her personal information. VCAT accepted the Police’s evidence that the footage was needed for intelligence purposes, for the purposes of planning for future protests and to comply with the Public Records Act 1973, which required the Police to retain footage for a certain period of time.

This was the first time that VCAT had made a decision on a case on whether Police collecting and retaining information on protestors was allowed under privacy laws and the Charter of Human Rights.

Environment Victoria and LIVE: Dual Gas case

The EDO acted as lawyers for Environment Victoria and Locals Into Victoria’s Environment in VCAT proceedings reviewing the EPA approval of a new brown coal fired power station, known as the Dual Gas power station.

The case was the first time VCAT had to consider how Victoria’s environmental laws apply to a large emitter of greenhouse gases, in the context of climate change. VCAT decided to approve the power station. However, they inserted a condition that Dual Gas could not commence construction of the power station until the equivalent amount of less efficient brown coal fired power generation shut down. VCAT inserted this condition on the basis of submissions by the EPA, EV and LIVE about how the precautionary principle should operate in relation to climate change. As a result of this condition, the power station has not gone ahead.

The case also set an important precedent in relation to standing, making it easier for environmental groups to review EPA decisions in VCAT.

See VCAT's decision and our blog on what we thought about the decision.

Alpine grazing documents case

In 2011, the Victorian government re-introduced cattle into the Alpine National Park, saying that the cattle were introduced as part of a trial to see if cattle grazing the vegetation would reduce bushfire risk. The government stated that there was significant scientific uncertainty about whether cattle grazing did reduce bushfire risk, despite the inquiry in 2005 which found that there was no evidence that cattle grazing did reduce bushfire risk, and that cattle caused serious harm to the national park. We acted for the VNPA in proceedings seeking the documents that the Department of Sustainability and Environment said showed that there was scientific uncertainty about the relationship between cattle grazing and fire risk.

We were successful in obtaining the documents. It turned out that the documents the DSE relied on for their decision to reintroduce cattle was a draft, unpublished literature review that had not been peer reviewed.

Environmental assessment in planning: Amendment 30 to the Corangamite Planning Scheme

On 9 November 2011, the EDO represented Port Campbell Community Group Inc at the Planning Panel hearing for the proposed rezoning of land for tourism development.  Save for one area, no environmental assessment of the suitability of the sites for new tourist facilities had been done.  The EDO advocated for environmental assessment, particularly of native vegetation and biodiversity, before any rezoning of takes place. The Port Campbell Community Group Inc submitted that the Panel should apply the precautionary principle in making its recommendations.  The Amendment proposed to rezone fragile coastal land around the Otway National Park and Port Campbell National Park so that it is suitable for tourism accommodation, such as large resort hotels.

Jan Beer

Jan Beer has been an effective and outspoken critic of the North-South pipeline. Melbourne Water collected significant amounts of personal information on Ms Beer during her campaign. The EDO took Melbourne Water to VCAT, alleging that they have breached the Information Privacy Act.

The case settled, with Melbourne Water admitting that they had breached Ms Beer’s privacy and publicly apologising to Ms Beer. This outcome clarifies that there are limits on what government agencies can do when collecting and disseminating information about protestors and activists, and protestors have a right to privacy.

Friends of Mallacoota

The EDO gave ongoing assistance to the Friends of Mallacoota in their campaign to oppose a new boat ramp at Bastion Point.

The EDO assisted the Friends of Mallacoota in the panel hearing on the Environmental Effects Statement. The EES panel in its report to the Minister for Planning substantially accepted the evidence put on behalf of the Friends of Mallacoota and the community and recommended that the boat ramp not proceed.

The Minister largely disregarded the report of the EES panel. In response, the EDO then brought proceedings in the Supreme Court of Victoria to test what the Minister’s powers under the Environmental Effects Act were. Unfortunately this case was unsuccessful. The reasons for the Court’s decision are here: http://www.austlii.edu.au/au/cases/vic/VSC/2010/222.html

Friends of Mallacoota also sought documents from the Minister for Planning and the Department of Planning and Community Development, as part of their campaign and preparation for the cases. In a judgment handed down in 2011, VCAT found that the Minister and the Department had not done adequate searches and ordered that they pay the legal costs of the Friends of Mallacoota.

The judgment is available here: http://www.austlii.edu.au/au/cases/vic/VCAT/2011/1889.html

Subdivision on estuary prevented: Friends of the Surry Inc

In late 2010, the EDO represented western Victoria-based environment group Friends of the Surry Inc at a Tribunal hearing to oppose the granting of a works permit for a site in Narrawong.  The site was next to the estuary of the Surry River, on a flood plain, and also on a primary dune system.  Represented by the EDO and a barrister, Friends of the Surry Inc successfully argued that the Tribunal should not grant the permit.

Later, in mid-2011, the EDO again represented Friends of the Surry at a hearing about the future planning controls for the site, which was held by an Advisory Committee specially appointed by the Minister for Planning.  The EDO, on behalf of the Friends of the Surry, argued that the planning controls for the site should protect its environmental features.  The Friends of the Surry also brought expert evidence to suggest that the site was of aboriginal cultural heritage significance.  The Advisory Committee ultimately agreed with the need to protect the environment at the site, and recommended that the site be rezoned so as to largely prevent future developments at the site.  The Minister for Planning then implemented the planning controls for the site recommended by the Committee.

Protecting biodiversity in Melbourne’s Urban Growth Boundary: Amendment C123 to Wyndham’s Planning Scheme

In 2010, the EDO represented the Victorian National Parks Association before Planning Panels Victoria in the challenge to secure grasslands within the UGB.  The Truganina South Precinct Structure Plan was to be one of the first tests for how biodiversity would be protected under the strategic impact assessment process approved by the Federal government.  The critically endangered Golden Sun Moth was found at the site and the EDO advocated for the retention of a grassland reserve within the PSP. The Panel report released in January 2011 recommended the retention of a Golden Sun Moth Conservation Site within the precinct.

Waste treatment facility: Residents Against Toxic Waste in the South East

In mid-2010, the EDO represented community group Residents Against Toxic Waste in the South East Inc (RATWISE) in their opposition to a waste treatment facility, which was proposed to be built on an existing landfill in Dandenong South.  The EDO assisted RATWISE to engage a barrister, who gave submissions at the 6 day hearing of a Planning Panel appointed to consider the proposal.  The barrister, on behalf of RATWISE, argued that the proposal facility should not be approved because of the risk of toxic emissions from the facility, the proximity of residential areas and because it was the community's expectation that the landfill would be replaced with public open space once closed.

The Planning Panel ultimately disagreed with RATWISE, and recommended that the proposal be given approval to proceed.  The Panel included an important qualification to its approval: in recognition of the community expectation that the landfill site would be used for public open space, the Panel recommended that the life of the facility be tied to the life of the landfill.

New Golf Course on Yarra River: Friends of the Earth

In late 2010, the EDO represented Friends of the Earth in a VCAT case regarding the development of the Eastern Golf Course. The golf course was proposed to be constructed on a flood prone site adjoining the Yarra River and about 1 kilometre upstream of Sugarload Reservoir, a major water supply for the people of Melbourne. Friends of the Earth were concerned that the golf course would have a negative impact on the health of the Yarra, and human health, as a result of the runoff of sediment, pesticides and sewage from the golf course.

The tribunal decided to refuse the permit due to the flooding risks on the site. They also found that had they decided to grant the permit, it would have been subject to much stricter conditions to control water quality than those the permit was originally subject, which were proposed by Melbourne Water.

Judgement available here: http://www.austlii.edu.au/au/cases/vic/VCAT/2010/2047.html