EIA

15environmental law

outcome

At the completion of this chapter you should be able to explain one or more area/s of civil law, and discuss the legal systems capacity to respond to issues and disputes related to the selected area/s of law.

Key knowledge

This chapter is designed to help you understand the key knowledge of:

legal principles relevant to the selected area/s of law

a contemporary issue for the selected area/s of law

the capacity of the legal system to respond to demands for change

methods and institutions for resolving disputes arising under the selected area/s of law.

Key legal terminology

defendant A person against whom a civil legal action is taken.

Kyoto Protocol International convention that aims to reduce greenhouse gas emissions.

negligence Doing or not doing something a reasonable person would or would not do in certain circumstances, which causes harm or loss to another person; a common-law principle and a key area in the law of torts or civil wrongs; essential concepts are the neighbour principle and breaches of duty of care.

on the balance of probabilities The standard of proof in a civil case.

plaintiff A person bringing a civil action person who has the burden of proving the case.

private nuisance Unreasonably interference with a neighbours enjoyment of their property, for example, noise, smells, smoke, water or other matter continually emanating from a neighbouring property.

public nuisance An act or omission that interferes with the comfort or convenience of a number of people to a considerable degree.

sue Start civil proceedings against another person.

trespass to land Unauthorised access to another persons land.

the purpose of the lawEnvironmental law aims to provide a safe and sustainable environment for current and future generations. Environmentalists and other interest groups are constantly lobbying governments to ensure that protecting the environment and preserving natural resources are top priorities.

Caring for the environment and looking after it for future generations has become a focus of Commonwealth, state and local governments in recent years. Governments, keen to encourage ecological sustainability, legislate to protect the natural environment and its flora and fauna, to ensure that both environmental and economic costs are considered in future development. Ecological sustainability is the capacity of ecosystems to maintain their essential functions and processes, and retain their biodiversity in full measure, over the long term.

Commonwealth and state governments have developed the National Strategy for Ecologically Sustainable Development and are party to an intergovernmental agreement on the environment. In the agreement, the Commonwealth and state governments have adopted a cooperative approach to managing the Australian environment.

Educating the community to use natural resources wisely so that they continue to be accessible in the future is also a prime focus.

The acts of parliament that have been passed by the Victorian Parliament and the Commonwealth Parliament for the protection of the environment list actions that would be damaging to the environment and must not be carried out. Local laws also make provision for planning in local areas to protect the environment. There are penalties for many of these actions. Therefore, these acts bring the area of environment protection into criminal law. There are other aspects of environmental protection that come under civil law and these are discussed later in this chapter.

582 ACCESS AND JUSTICE

Commonwealth legislationThe Commonwealth Parliament has passed many acts of parliament that relate to the protection of the environment. Often these acts are passed as a result of demands for changes in the law.

National Environment Protection Council Act 1994 Established the National Environment Protection Council and regulates its operation so that people can enjoy the benefit of protection from air, water and soil pollution and from noise, wherever they live in Australia. It also ensures that the decisions of the business community are not fragmented or distorted through the adoption of major environmental protection measures.

Environment Protection and Biodiversity Conservation Act 1999 Reformed the Commonwealth environment laws, focusing on environmental matters of national significance, streamlining the Commonwealth environmental assessment and approval process, and providing an integrated system for biodiversity conservation and management of important protected areas.

National Environment Protection Measures (Implementation) Act 1998 Provides for the implementation of national environment protection measures in respect of certain activities carried out by or on behalf of the Commonwealth and Commonwealth authorities.

Environment and Heritage Legislation Amendment Act (No. 1) 2006 Amended the Environment Protection and Biodiversity Conservation Act 1999, restricting actions that have had, will have or are likely to have a significant impact on a place of national heritage (place that is valued for its heritage and characteristics).

Antarctic Treaty (Environment Protection) Amendment Act 2010 Protects the flora and fauna of the Antarctic and regulates the types of food that can be taken to the Antarctic.

Victorian legislationThe Victorian Parliament has also passed many acts for the protection of the environment, including.

Environment Protection Act 1970 Created a legislative framework for the protection of the environment in Victoria.

Planning and Environment Act 1987 Deals with issues relating to properties, building permits and planning permits.

Wildlife Act 1975 Protects state wildlife, nature reserves and sanctuaries and allows for the control of noxious wildlife.

National Parks Act 1975 Regulates the use and conservation of over 50 national, state and wilderness parks and marine sanctuaries in Victoria.

Tobacco Act 1987 Prohibits certain sales or promotion of tobacco products and certain non-tobacco products, creates offences in relation to smoking and the possession of tobacco products and establishes the Victorian Health Promotion Foundation; under this act it is an offence to smoke in enclosed workplaces, restaurants, outdoor dining areas, retail shopping areas, a casino or in a car if a person under 18 is in the car.

Water Act 1989 Provides for the management of the states water, ensuring its proper use and conservation for future generations.

ChApTEr 15 ENVIroNmENTAl lAw 583

Catchment and Land Protection Act 1994 Established 10 catchment areas across the state and established the catchment management authorities to manage Victorian waterways, floodplains and rural drainage. The act also aimed to improve land management and the control of noxious weeds and animal pests.

National Environment Protection Council (Victoria) Act 1995 Provided for the establishment of a National Environment Protection Council.

Sustainable Forests (Timber) Act 2004 Provided a framework for sustainable forest management and sustainable timber harvesting in state forests.

Sustainability Victoria Act 2005 Established Sustainability Victoria, which replaces the Sustainable Energy Authority Victoria and EcoRecycle Victoria and amends the Environment Protection Act 1970.

Water Acts Amendment (Enforcement and Other Matters) Act 2007 Makes further provision for enforcement in drought response plans, emergency management plans and permanent water saving.

Environment Protection Amendment (Landfill Levies) Act 2008 Amended the Environment Protection Act 1970 to increase certain prescribed industrial waste landfill levies and made minor amendments to improve the operation of the act.

Greenhouse Gas Geological Sequestration Act 2008 Allows for the facilitation and regulation of the injection of greenhouse gas substances into underground geological formations for the purpose of permanent storage of those gases, including facilitation and regulation of exploration for suitable underground geological storage formations, as part of Victorias commitment to the reduction of atmospheric greenhouse gas emissions.

Water (Commonwealth Powers) Act 2008 Referred certain matters relating to water management to the Commonwealth Parliament for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth and amended the Murray-Darling Basin Act 1993 to provide for the carrying out of an agreement with the Commonwealth.

recycling waste


Under the Local Government Act 1989 (Vic.), each local council can make a range of local laws relating to the use of the local environment, including the use of local recreational facilities, rubbish removal, building and planning requirements and the keeping of animals on private property.

Governments have also funded educational programs to encourage Australians to reduce their waste and to care for the environment. Each level of government has passed legislation, regulations or local laws to protect the environment.

Things you can do to protect the environmentlittle choices that are made by everyone everyday can add up to make a real difference to the environment. Some of the things that can be done include:

minimise waste reduce, reuse, recycle

dispose of your litter carefully (take it home, use recycling bins when appropriate)

compost your food and garden waste and buy locally-grown foods

switch to Green power for your electricity this will help reduce greenhouse pollution and support renewable energy industries

only heat or cool rooms you are using

install long-lasting fluorescent light globes

wash clothes in cold water

install a solar hot-water system

cycle or walk for short trips

use public transport where possible

have shorter showers

insulate your ceiling to avoid losing heat in cold weather or keep out the heat in summer

use the clothesline rather than a dryer for drying clothes

do not buy gas-guzzling cars.

water usePeople use lots of water for drinking, cooking and washing, but even more for producing things such as food, paper, cotton clothes, etc. The water footprint of an individual, business or nation is defined as the total volume of fresh water that is used to produce the goods and services consumed by the individual, business or nation. Australians are among the highest water users in the world, using about 341 000 litres per person per year (about the equivalent of three lanes of an Olympic swimming pool or the amount of water used to fill a two-bedroom apartment from floor to ceiling).

According to Water Resources Management, one pair of leather shoes takes approximately 8000 litres to produce (including all fresh water used in the entire production process) and one hamburger takes 2400 litres. Water restrictions are placed on individuals, and to a lesser extent, businesses, when water storage is low.

Recycled waterRecycled water comes from waste water that has been used in bathrooms, laundries, kitchens and businesses. It has been treated to a high standard so it is ready to reuse. Australia is short of water and is turning to recycled water as a resource!

To deal with the water shortage problem, some households have installed grey-water diversion systems to redirect non-toilet sewage (predominantly from bathrooms and

Did you know?

Approximately 70 per cent of the earth is covered by water. Only one per cent of this water is drinkable.


laundries) away from the sewage system and into the garden. This is legal where a licensed plumber completes the work in consultation with local water authorities and local councils. However, excessive use of grey water, which contains pollutants such as lint, human waste and detergents, can be a health hazard and needs to be managed properly.

Desalination plant site at wonthaggi

Grey waterGrey water is any washing water that has been used in the home, except water from toilets. Dish, shower, sink, and laundry water comprise 50-80 per cent of residential waste water. This may be reused for other purposes, especially watering the garden.

Victorian water authorities have been selling recycled water from sewage plants for appropriate use in industry, agriculture and horticulture since 1970. The level of treatment the recycled water receives is based on its intended use.

Desalination plantA desalination plant at wonthaggi in Victoria will provide additional water to melbourne, Geelong, western port and South Gippsland. The plant is expected to produce around 150 billion litres of fresh water per year from the sea by removing the salt from the water.

There are conflicting views about the need for the plant and about its impact on the environment. The plant is expected to use about 90 megawatts of power from the grid, which translates to 2160 mwh per day, although there is a commitment to use renewable energy to power the plant.

According to a report by Professor Corey Bradshaw of the University of Adelaide, Australia is ranked ninth of the worlds worst countries for environmental imapct, caused by carbon emmissions, the rate of increase in threatened species and natural forest loss.


pollutionThe Environment Protection Authority (EPA) investigates cases involving land, air, water or noise pollution and is empowered under the Environment Protection Act 1970 (Vic.) to prosecute any person or company responsible for polluting the environment. The EPA monitors pollution levels in Victoria, assists the government to formulate environment policy and educates the public about environmental issues.

The EPA also works with industry to encourage reductions in energy use, water consumption and waste.

Effects of global warmingResearch by the worlds scientists, including the international Intergovernmental Panel on Climate Change, suggests that:

over the past 100 years, the earths surface temperature has risen by around 0.7C on average

sea levels are rising by 2100 sea levels may have risen by 1859 cm as oceans expand and glaciers and ice sheets melt

weather patterns are changing, and severe droughts, heat waves, floods and storms are happening more often

plants, animals and human health are being affected as climate patterns shift

11 of the last 12 years are the warmest years on record since 1850. The warmest year on record is 2005.

As a signatory to the United Nations Framework Convention on Climate Change (UNFCCC) in 1992, Australia agreed to monitor and report on its greenhouse gas emissions, contribute to research into the problem of climate change and educate the public about the probable effects of climate change. The Kyoto

protocol came into force in 2005

Wind farmA community-owned wind farm is to be built at hepburn, a Victorian country town. After five years of planning, contracts were signed in April 2010, to build the two-turbine hepburn Community wind park at leonards hill, about 10 kilometres from Daylesford. It will generate 12 200 megawatt hours a year of electricity. This is significantly more power that is needed for the 1887 homes in the town.

The Kyoto Protocol was negotiated in Kyoto, Japan in 1997 and came into force in 2005. The protocol asks developed nations to reduce greenhouse gas emissions by 5.2 per cent or more by 2010 compared to the year 1990. The Kyoto Protocol recognised Australias dependence on fossil fuels and set Australias targets at 108 per cent of 1990 emissions, to be achieved on an annual average basis between 2008 and 2012.

The then Prime Minister Kevin Rudd announced in April 2010 that the Commonwealth Government would delay the introduction of the carbon pollution reduction scheme (CPRS) or emissions trading scheme until the end of 2012, when the current Kyoto agreement expires. Mr Rudd said that governments around the world would need to make clear their new carbon reduction commitments at that time and That will place the Australian Government at the time in a better position to assess the level of global action on climate change.


In July 2010, Prime Minister Julia Gillard announced that she would impose strict guidelines on new coal-fired power stations, invest $1 billion over 10 years towards converting Australias electricity grid to renewable energy sources, create an independent Climate Change Commission to explain the science of climate change and create a Citizens Assembly to examine the consequences of introducing a CPRS.

LeARning AcTiviTy 15.1purpose of environmental law

1 what is ecological sustainability?

2 why are many issues relating to the environment criminal matters rather than civil?

3 Identify two Commonwealth parliament acts and Victorian parliament acts dealing with environmental issues and explain the purpose of each act.

4 how does local government help to protect the environment?

5 Explain three things that you are doing (or perhaps should be doing) to help protect the environment.

6 how does the Environment protection Authority help to reduce pollution?

7 why should you think twice before you eat a hamburger?

8 what is grey water? how can its use help the environment?

9 what is global warming? Give an example of why scientists think the world is warming.

10 investigation

a Investigate and report on the meaning of an emissions trading scheme.

b Investigate and report on the conflicting opinions about the desalination plant being built near wonthaggi.

negligence, trespass to land and nuisanceThe laws of trespass, nuisance and negligence are relevant to the protection of the environment. These areas of law have evolved through common law or judge-made law and often relate to a persons right to own and enjoy their land. Trespass, nuisance and negligence are areas of civil law. It is also possible, however, to prosecute individuals or groups for criminal trespass, nuisance and negligence.

NegligenceThe law of negligence requires property owners to ensure that their property is safe and free from hazards that may cause harm to those who enter the property. A property owner must repair or remove any hazard on their property that might cause injury or harm to others.

Negligence has been defined as a failure to take reasonable care. A person is obliged to take reasonable care in regard to other people, where it is reasonably foreseeable that other people could be harmed by their actions or omissions. When bringing an action for negligence, it must be proved that:

the person who was negligent owed a duty of care to the person injured

the duty of care was breached

the breach of the duty of care caused loss or harm (causation) and

the harm or loss was the result of the breach of duty of care.


If it can be proved that the wronged person was owed a duty of care, that the duty of care was breached and that harm was caused as a result, the wronged person can claim compensation (damages). Causation refers to the causal link between the breach of the duty of care and the loss or harm that resulted.

It is possible that the law of negligence could apply in some situations where there has been environmental damage. For example, chemicals being negligently released into a river and then causing health problems, or oil negligently spilled from a ship or oil rig causing environmental damage to coastal birds and animals.

Caltex Oil (australia) Pty ltd v. Willemstad

In the case of Caltex Oil (Australia) Pty Ltd v. Willemstad (1976) 136 Clr 529, the high Court of Australia considered a claim for damages for economic loss resulting from the damage by the Dredge willemstad to a crude oil pipeline at port Botany connecting the Kurnell oil refinery to the Banksmeadow oil Terminal.

In this case, Caltex delivered its oil by contract to another company (Aor). This company refined the oil and sent it back to Caltex by pumping it through an underwater pipe that it owned. A dredge was operated carelessly and damaged the pipe, disrupting the oil flow. Aor recovered the cost of making good the pipe and consequential financial losses. Caltex suffered no damage to property, but did suffer economic loss, being the cost of making alternative arrangements for the transport of its oil while the pipeline was out of action

The damage to the pipeline was found to be due to the negligent navigation of the dredge while it was dredging a deep channel in the bay, and to a defective chart prepared by a marine surveyor.

The high Court held that Caltex was entitled to recover those expenses from both the owners of the dredge and the marine surveyor as damages for negligence. The majority (Gibbs, Stephen and mason JJ) held that although as a general rule damages are not recoverable for economic loss which is not consequential upon injury to personal property, even if the loss is foreseeable, damages are recoverable in a case in which the defendant has knowledge or the means of knowledge that a particular person will be likely to suffer economic loss as a consequence of his negligence.

CASE STUDY

sChOlem v. NsW dePt Of health (nSW DiSTRicT couRT, SyDney, MAy 27, 1992)

The case of Scholem v. NSW Dept of Health (NSw District Court, Sydney, may 27, 1992) was the worlds first jury verdict relating to an employers negligence in regard to passive smoking. liesel Scholem worked for the NSw Department of health between 1974 and 1986 as a psychologist in a community health centre counselling mental health patients.

Scholem was often exposed to passive smoke in her work environment. The Department of healths smoke-free workplace policy was not applied to her workplace until 1984. most of the staff and patients were smokers. Although Scholem originally tolerated smoking in her room, she eventually asked people not to smoke while in her room.

CASE STUDY

LeARning AcTiviTy 15.2Negligence

1 read the case study Caltex Oil (Australia) Pty Ltd v. Willemstad and answer the questions.

a Explain the negligent action in this case.

b who was found to be negligent?

c Explain the reasons for the decision in this case.

2 read the case study Scholem v. NSW Department of Health and answer the questions.

a how was the NSw Department of health negligent in this case?

b what was the outcome of this case?

c how is this case relevant to the environment?

d what effect will this case have on future cases? Explain.


Trespass to landUnauthorised access to another persons land is called trespass. Everyone has the right to the enjoyment of their land. When someone goes onto your land without your permission, or unlawfully interferes with your land, belongings or person, they may be trespassing.

Trespass to land is direct physical interference with a persons exclusive possession of their land by another person. The interference is usually voluntary and intentional, although it can include reckless or careless interference. Merely passing across anothers land amounts to trespass and no damage need be caused for it to be trespass.

A property owner can seek a court order that prohibits a person re-entering the property or the property owner can sue the trespasser under civil law, particularly if damage has been done.

A person who cuts down trees on another persons land could be subject to a claim for trespass. Minerals are in a different situation as all minerals are owned by the Crown, which has the power to grant various mining licences over privately-owned land, subject to whatever compensation may be provided for in legislation.

Trespass can also apply to the air above the land, for example, a commercial airline flying at high altitude above your land would not be trespass, but a joy-flight pilot needlessly flying low over your property and persistently causing a nuisance might be trespassing. It is also trespassing when someone dumps rubbish on your land, which deprives you of the full enjoyment of your land.

merely passing across another persons land amounts to trespass

Scholem claimed that exposure to environmental tobacco smoke had exacerbated her asthma, which had previously been entirely reversible by bronchodilators but became irreversible, causing her considerable disability.

The Government Insurance office offered to settle before the hearing for $60 000 including costs. Scholem, a board member of the Australian Consumers Association, felt that it was important to set a legal precedent, so she refused.

on 27 may 1992, a jury in the District Court of Sydney found the Department of health had been negligent. Scholem was awarded $85 000 in damages.


The law gives some people permission to enter other peoples property, for example meter readers, postal workers and fire-fighters are permitted to enter a persons property for specific reasons related to their work. If they do more than is necessary to accomplish the purpose of their entry onto the land, they can be deemed to be trespassing.

Many Victorian acts and local regulations have been passed in an attempt to deal with many acts of trespass, including those related to non-physical trespass. This includes certain things such as light. Each local council has regulations related to building and planning which places certain restrictions and obligations on owners of land in relation to the houses they can build on their property. The Planning and Environment Act 1975 (Vic.) and the Planning and Environment Regulations 2005 (Vic.) both deal with these issues.

Light trespassLight trespass occurs when unwanted light enters your property, for example, intense light shining over a neighbours fence. A common light trespass problem occurs when a strong light enters the window of a home from the outside, causing problems such as sleep deprivation or blocking an evening view.

Over-illumination can interfere with a persons ability to enjoy his or her property. It also results in excessive waste of energy.

A spotlight from a waikiki hostel shines into the rooms of a neighbouring hotel

Toxic trespassChemical trespass incidents are events where agricultural or veterinary chemicals have been used or disposed of in a manner that causes actual or potential:

contamination of land

contamination of animals or plants

harm to the health or safety of people

environmental harm.


For example, when a property is sprayed some of the chemicals in the spray can drift to other properties and contaminate crops or livestock or cause health problems for people in the area.

Our grandparents lived before the chemical revolution began to unfold in the mid-1950s. We, on the other hand, have lived at a time when pesticides and herbicides are in common use and we have taken into our bodies hundreds of toxic substances. Many take up residence in our body fat, where they may remain for decades; others are absorbed into the body but are quickly metabolised and excreted.

Winds and air currents can carry persistent chemicals thousands of miles. Snow on the Swiss Alps holds DDT used in the tropics for malaria control. Indigenous communities living near the Arctic Circle carry in their bodies high levels of polychlorinated biphenyls (PCBs) used primarily as flame retardants far to the south in Canada and the USA.

Our bodies contain chemicals found in products and processes used in everyday life. People have used DDT when growing food, and lived near polluting factories or busy traffic intersections. Many of the foods we eat and the products we use to dye our hair, clean our houses and make up our faces contain small quantities of chemicals known to be dangerous in larger quantities.

Many of the foreign chemicals found in the body in urine, bone, breast milk, fatty tissue or other parts of the body can potentially change how the bodys intricate and fragile systems function. Such chemical hijacking can begin at very low levels of exposure, levels previously considered well below standard safety thresholds.

Toxic trespass


A study has found that women exposed to high levels of dioxin after the 1976 industrial explosion in Sevesco, Italy have an increased risk of breast cancer. Researchers have found that low sperm count and sperm quality are associated with exposure to chemicals, including commonly used pesticides such as alachlor, atrazine and diazinon.

LeARning AcTiviTy 15.3Trespass to land

1 how can the law of trespass help to protect the environment? Give an example.

2 To what extent does trespass apply to the air above the land?

3 Describe a situation of light trespass.

4 what is toxic trespass? how can it occur?

5 how can we carry toxins in our body?

6 read the case study poison 1080. how can the use of 1080 poison create a toxic trespass?

PoiSon 1080

The poison known as 1080 is used to control or eradicate introduced wild animals that are predators on native animals. It could, however, affect neighbouring organic farms because organic certification is put at risk when there is chemical trespass. The poison could also get into waterways and cause damage to the fish, or pollute drinking water.

CASE STUDY

7 read the case study Salerno v. Proprietors of Strata Plan No. 42724. how can smoking in a block of flats be construed as trespassing?

salerNO v. PrOPrietOrs Of strata PlaN NO. 42724

This case was settled in the Supreme Court on 8 April 1997. The court ruled that it was within the power of the owners corporation to ban smoking by occupants of the apartment blocks and by their visitors, even on individual lots. The judgment may also allow for the prohibition of smoking on unenclosed land that comes under the jurisdiction of owners corporations, e.g. balconies or gardens.

CASE STUDY

NuisanceThe law of nuisance is a civil wrong. People whose enjoyment of their property is interfered with can sue for private nuisance. The tort of private nuisance refers to violation of the right of a person to reasonable convenience and comfort in life.

It is necessary to establish:

whether the act or omission created an inconvenience

whether the act or omission was unreasonable

what actual loss or harm was caused.


The law of nuisance broadly concerns the protection of a persons land from damage or from activities that interfere with the enjoyment of that land. Nuisance can involve, for example, water escaping from a dam, pollutants from a mining operation seeping into the environment, fumes emitted from an industrial process, or noxious weeds spreading from one property to another.

It is not necessary to show that the interference with the land was direct or intentional, as long the interference is a reasonably foreseeable consequence of the defendants activities. For example, if it is foreseeable that the defendants use of pesticides could interfere with the reasonable use or enjoyment of the plaintiff s land, the defendant will be liable in nuisance if they do not take action to prevent wind or water transporting pesticides off their land and onto the plaintiff s land.

However, nuisance is of limited use in protecting the environment because it only protects an individuals interest in land and many of these situations are now dealt with more comprehensively by legislation dealing with pollution and other environmental harms.

A group of people could sue for public nuisance, if they were all affected by the same action. A public nuisance is a nuisance so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large (Lord Denning). To be considered a public nuisance, an act or omission must, therefore, interfere with the comfort or convenience of a number of people.

When deciding a case of nuisance, a court will consider:

the frequency and extent of the interference

the defendants reasons for using the land the way they are

the ordinary use of land in the area

the difficulty the defendant would face in taking precautions to prevent the nuisance.

TreesProperty owners have a common-law right to enjoy their land without unreasonable interference from neighbouring trees and plants. There is no legislation dealing directly with trees and neighbour disputes in Victoria.

Neighbours occasionally quarrel about tree branches, tree roots and leaf litter that spread from one property into another. If a tree branch or root is invasive, a property owner can cut the offending branch or root making sure that they do not damage or destroy the tree. Technically, the branch or root material belongs to the owner of the tree and can be returned to them, but most people try to avoid further conflict by disposing of the material themselves.

Pruning must not kill the tree or unreasonably make the tree unstable, as the owner of the tree may be able to seek compensation for the damage caused.

noise and smellsNeighbours may create a private nuisance when noise, smells, smoke, water or other matter emanating from their property unreasonably interferes with their neighbours enjoyment of their land. For example, a person may keep geese in their backyard that are noisy day and night. The neighbours may seek a court order to have the geese removed or they may seek compensation for any loss or injury sustained.

Whether noise levels are considered excessive or unreasonable will often depend on the location of the property, and the tolerance of people living in the vicinity. Complaints about neighbourhood noise often relate to the use of lawnmowers, air-conditioners, alarms or pools. Noise from parties, children and animals can also irritate neighbours and escalate into a dispute.


Neighbours can readily resolve these disputes through negotiation or mediation, without involving the law. Neighbours who are in conflict can ask the Dispute Settlement Centre of Victoria for advice on how to resolve the matter or they may ask the centre to organise a mediation session where both parties meet with independent mediators to discuss and hopefully resolve the dispute.

Most local councils have local laws that regulate neighbourhood noise. Noise pollution is also prohibited under the Environment Protection Act 1970 (Vic.). The Victorian Governor-in-Council made the Environment Protection (Residential Noise) Regulations 1997 on the recommendation of the Environment Protection Authority. These regulations list the different types of noisy machinery and equipment that might be used in residential areas and specify the times when it would be unreasonable for this machinery or equipment to be used.

The Environment Protection Authority (EPA) is authorised to investigate complaints about excessive factory or industrial noise and it can conduct noise tests on excessively noisy motor vehicles.

LeARning AcTiviTy 15.4Nuisance

1 what does the law of nuisance relate to?

2 If a neighbours tree is overhanging your garden and causing a nuisance, what action can you take?

3 what laws might apply or what rights do neighbours have in the following situations?

a without consulting his neighbour, Vladimir cuts down branches from his neighbours trees that overhang his property and throws the limbs over the fence onto the neighbours lawn.

b Charlies neighbour has a dog that barks day and night.

c Veronicas neighbours are early risers. They swim before breakfast and run their noisy swimming pool pump from 5.00 a.m. to 8.00 a.m. every morning.

d william has a large spotlight that shines into his neighbours bedroom. he leaves it on all night for security purposes.

4 read the case study working from home and answer the questions.

a what is occurring in this scenario that constitutes a nuisance?

b what would have to be proved for Joans neighbour to be successful in a case of nuisance against Joan?

WoRKing fRoM hoMe

Joan starts a small clothing business from home. She converts her three-car garage into a small clothing factory. As her business expands, she employs other people and runs her cutting and sewing machines day and night. Neighbours complain about the noise from the machines and the increase in employee and delivery traffic. As Joans business grows, her husband buys three guard dogs to protect the stock when they are not home. Neighbours complain about the large quantities of manufacturing waste (material off-cuts, cardboard, old machinery) that Joan piles up outside the property on a monthly basis.

CASE STUDY


5 read the case study Friesen v. Forest Protection Limited and answer the questions.

a what occurred in this case? what injury was suffered?

b Explain how the actions in this case constitute a trespass and a nuisance.

frieseN v. fOrest PrOteCtiON limited

In the case of Friesen et al. v. Forest Protection Limited (1978), 22 N.B.r. (2d) 146 (Q.B.), it was found that spraying insecticides on a persons land without consent constituted a nuisance. Dr Abram Friesen and his wife were awarded $1328 plus costs.

In may 1976, Dr and mrs Friesen were picking plants near a creek on their farm when planes flew directly overhead, emitting a cloud of spray that descended on them, burning their cheeks, causing their eyes to water, and making them cough. The Friesens, organic farmers who shunned pesticides, were furious. They knew that as part of their insect control program, Forest protection limited was spraying a pesticide formulation containing fenitrothion a highly toxic organophosphate insecticide. Just one week earlier, Dr Friesen had asked the company not to spray his property.

Following the incident, the Friesens suffered a variety of physical ailments, which they attributed to fenitrothion poisoning. Their 12-year-old-son suffered asthma attacks. The Friesens also found several hundred dead bees near their hives.

The Friesens sued Forest protection limited for damages under trespass and nuisance. mr Justice Dickson determined that Forest protection limited had trespassed by throwing a foreign substance on the property of another. They also found that this action had disturbed the Friesens enjoyment of their property.

Justice Dickson also found Forest protection limited had created a nuisance.

CASE STUDY

genetically modified cropsGenetically modified (GM) plants have had their genetic material (DNA) changed to introduce new characteristics or alter existing characteristics. A form of gene technology also known as genetic engineering, this process sometimes involves inserting genetic material into the desired plant from other plants or bacteria.

Gene technology can also be used to speed up conventional breeding programs for new plant varieties.

Genetically modified crops are used in various parts of the world to produce food for animal or human consumption. The genetic modification may make crops more resistant to pests, increase crop yields or make fruit last longer, taste better or contain more vitamins. Examples of genetically modified crops include:

clover plants that resist plant viruses estimated to cost Australian farmers more than $100 million dollars a year

ryegrass plants that provide better feed for livestock as well as reducing hay fever and asthma problems associated with ryegrass pollen

longer-lasting tomatoes

canola plants that resist certain pesticides; this means producers can use weed-killer sprays without damaging their canola crop

frost-resistant potato plants

rice plants with rice grains that contain beta-carotene, which the body then converts into vitamin A.


Many consumers around the world are concerned about the unknown environmental effects of growing genetically modified crops and consuming genetically modified foods. For this reason, the use of genetically modified organisms in Australia is either banned or regulated under strict licence.

The Gene Technology Act 2000 (Cth) regulates the use of genetically modified organisms in Australia and establishes the Office of the Gene Technology Regulator to oversee developments in this area. It prohibits the use of genetically modified organisms (for research, manufacture, production or import) unless the regulator deems the use low risk or allows the use under strict licence. The gene technology regulator must keep a register of genetically modified organisms approved for use or distribution in Australia.

Genetically modified food can be imported into Australia but it must undergo a safety assessment by Food Standards Australia. Since 2002, food labels must indicate if a product contains genetically modified food or ingredients.

The Gene Technology Amendment Act 2007 (Cth) established the Gene Technology Ethics and Community Consultative Committee to provide advice on ethical issues relating to gene technology. This committee is also responsible for community consultation and matters of general concern relating to genetically modified organisms.

Victoria has lifted its ban on growing genetically modified (GM) canola. Premier John Brumby decided not to extend the moratorium on growing genetically modified canola and said lifting the ban would make Victorian farmers more internationally competitive. It would also be better for the environment because GM canola uses far less pesticide than traditionally grown canola. Anti-GM activists have condemned the decision, saying consumers will face a growing array of food made from GM material and they would be unaware of the fact when they purchased the food.

Fruit of the future genetically modified to be a combination of an apple and an orange


In May 2007, the Network of Concerned Farmers (NCF) expressed outrage at the news that the Victorian Government was lifting the ban on genetically modified (GM) crops. The main concern was the cost of separating non-GM crops in order to supply markets that are GM sensitive.

All genetically modified foods intended for sale in Australia and New Zealand must undergo a safety evaluation by Food Standards Australia New Zealand (FSANZ). FSANZ will not approve a GM food unless it is safe to eat.

Advantages of Gm foodsGenetically modified foods have many potential benefits. For example:

pest-resistant crops can be produced more cheaply and the use of less herbicides will reduce soil contamination and toxic water run-off

GM crops may be better for the environment because fewer harmful pesticides are being used

drought-resistant crops would allow farmers to grow crops in low rainfall areas

more-nutritious crops could provide better nutrition in countries that are reliant on single crops such as rice

crops could produce edible vaccines, making it easier to deliver the vaccine to reduce disease in third world countries

crops can be developed to clean up soil pollution

Some bananas have been genetically engineered to contain genes that are expected to increase the content of vitamin A, vitamin E or iron in the fruit


genetically modified crops or foods may last longer or have improved nutritional value

crops can be modified to make food better for consumption. For example, improved vitamin content or the removal of allergens to reduce allergic reactions to certain foods

governments rigorously test genetically modified food so it may be safer for consumption than non-genetically modified food that may not be tested

pest- and disease-resistant crops will increase world food production using less land resources

increased food production through genetically modified crops could eliminate world hunger

crops could make their own pesticides within the plant.

Disadvantages of Gm foodsGenetically modified foods may cause some problems. For example:

insects could become resistant to crops that have been genetically modified

herbicide-resistance genes could transfer from GM crops to weeds, making weeds resistant to herbicides

GM crops could cause allergies

developing and growing GM crops is very costly and could lead to higher prices for consumers

the technology is new and the long-term environmental or health effects of growing or eating genetically modified food are unknown

some genetically modified plants could transfer their altered genes to other plants, which could create environmental problems, for example, when pollen is blown onto other crops

if companies that genetically modify plants are able to take out patents over the new plants they create, this gives them considerable power over world food production

companies generally create genetically modified crops to improve company profits rather than solve world hunger problems.

perhaps we could have genetically modified apples that are blue


You may already be eating Gm products! Some food items that contain GM products have been on the supermarket shelves since 2000, when the Food Standards Australia and New Zealand organisation approved the first GM products for sale in Australia. Mostly these items are imported from the US. Any GM ingredients must be identified on the packet, but foods that are highly processed to the extent that all GM protein and DNA should have been removed do not require GM labelling. Nor do meat products from animals that have been fed genetically modified food.

Some foods may be GM free but may use products derived from animals that were fed GM soy or corn. Some restaurants or fast food outlets may use oil from GM crops in the cooking process, such as cottonseed oil.

Gm crops and negligenceA farmer who grows GM crops could be sued for negligence if his or her GM seeds spread to a non-GM farmers crops. For a case of negligence to exist it must be shown that:

the GM farmer failed to observe a duty of care to manage his or her GM farming activities to reasonably avoid damage to the non-GM farmer

there has been a breach of duty by the GM farmer

the breach of duty led to damage to another party.

Farmers growing GM crops have a duty of care to manage their crops to minimise impact on others. A breach of duty could result from failing to adhere to good practice in GM crop cultivation (such as keeping buffer zones between GM crops and plantings of non-GM neighbours).

Gm crops and private nuisanceAmong other things, the law of torts protects the use and enjoyment of property. Torts are civil wrongs including negligence, nuisance and trespass. For GM crops, the tort of private nuisance may be relevant because the spread of GM seed or pollen to a non-GM neighbour could compromise the neighbours non-GM or organic status. If a court decides the spread of pollen or seed prevents the neighbours use and enjoyment of their property, the GM farmer may be liable for loss of profits and cleaning up the neighbours property.

If there are several GM farmers in the area, using the land for GM crops may be seen as a reasonable use of the land, so it would be harder for non-GM farmers to successfully sue GM farmers for nuisance.

Trespass to landTrespass to land involves direct interference with the possession of anothers land. A GM farmer may be liable under trespass if he or she continues to grow a GM crop even after it is discovered that the GM crops are contaminating a neighbours crops.

LeARning AcTiviTy 15.5Genetically modified crops

1 why are some crops genetically modified? Give an example.

2 why is the use of genetically modified organisms in Australia either banned or regulated?

3 Discuss the arguments in favour of and against genetically modified crops. Give your opinion on the use of genetically modified crops.


4 Identify one group that has expressed concerns about genetically modified crops. Give a reason for their concern.

5 Identify the act of parliament that regulates Gm crops.

6 make up three situations as follows:

a a case of negligence due to Gm crops

b a case of trespass due to Gm crops

c a case of nuisance due to Gm crops.

7 investigationInvestigate and report on the use of Gm crops in Australia.

logging in old-growth forestsIdeally, the rate at which forest trees are logged should not exceed the rate at which they grow. To achieve this level of sustainability in Victoria, the government needs to buy back logging licences from commercial operators, but this will also reduce the level of employment in the Victorian timber industry.

Much of the felled timber is used for woodchips that are exported or used locally to make paper products. Environment groups believe it is a waste to use old trees in this way. The Greens Party argues that large-scale logging results in soil degradation and loss of wildlife and tourism opportunities.

old-growth tree in Tasmania


In their efforts to force the government to act, environmental activists have conducted forest protests that aim to stop or hamper logging works. While these are generally peaceful, they can result in confrontation between protesters who are exercising their right to peaceful protest and loggers who are exercising their right to fell trees under licence. The National Association of Forest Industries describes Australias forests as working native forests that provide timber for manufacturing, recreational areas, grazing areas for farmers and homes for both flora and fauna. It believes that the environmental impact of logging operations is controlled through the use of harvesting plans and reforestation projects.

Many people are happy to support the logging of plantation trees, but not old-growth forests. Besides the aesthetic value of old-growth forests, studies have shown that old-growth forests are a major store of carbon. Many people enjoy visiting old-growth forests; in Tasmania, for example, eco-based tourism continues to grow as a major driver in the states economy.

people protesting in Tasmania about logging old forest trees


gunnS LiMiTeD

on 9 August 2006, Tasmanian timber company Gunns limited was ordered to pay preliminary legal costs to defendants in the Gunns 20 case. The Gunns 20 case commenced in December 2004. The Tasmanian logging company Gunns limited sued 20 environmental activists, organisations and concerned citizens for $6.9 million, citing their protesting and restriction of logging. Gunns claimed that the environmental activists had damaged their business and reputation.

Gunns was claiming sabotage and trespass at its logging sites.The case was a disaster for Gunns. The company paid $1.3 million in defendants legal costs and stated

in 2009 that its own costs amounted to $2.8 million. Gunns obtained just $205 000 in settlements with the wilderness Society and limited undertakings about future protests from five defendants. The case eventually collapsed on 1 February 2010, after five years and 48 days. Gunns agreed to pay the remaining four defendants $155 088 for their legal costs.

CASE STUDY


LeARning AcTiviTy 15.6logging old-growth forests

1 why do you think many people have protested against logging in old-growth forests?

2 Explain two conflicting opinions about logging in old-growth forests.

3 why did Gunns limited sue 20 environmental activists in the Gunns 20 case?

4 what was the outcome in this case?

5 investigationInvestigate anti-logging protests and write a short report describing a protest that is taking place or has taken place.

oil-spill pollutionWhen an oil spill occurs, it is generally due to human activity and is a form of pollution. Oil spills often occur in the ocean or coastal waters and can be crude oil, refined petroleum products (such as gasoline or diesel fuel) or by products or oil refuse from ships.

Spills can take months or years to clean up. Marine birds or mammals such as seals can be seriously affected by oil spills. The oil penetrates their feathers, reducing their insulating capabilities and making the birds vulnerable to temperature and less buoyant. It has similar effects on the fur of animals. Unless they are helped, affected animals and birds are likely to die. Beaches become covered in oil and impossible to use for recreation. Fish and fishing industries can be grossly affected.

LeARning AcTiviTy 15.7oil-spill pollution

1 what occurs when there is an oil spill?

2 read the case study Gulf of mexico oil spill and explain what occurred.

3 which type of tort or torts due think could be appropriate here? Explain.

guLf of Mexico oiL SPiLL

The Deepwater horizon drilling rig in the Gulf of mexico caught fire in may 2010 and burned for two days. It then sank in 5000 feet of water. It is believed that 11 men lost their lives. The rig belongs to Transocean, the worlds biggest offshore drilling contractor. The rig was working on Bps macondo exploration well when the fire broke out. Bp pay around $500 000 per day to use the rig. when the rig is drilling for oil and gas, with helicopters and support vessels and other services, it costs around US$1 000 000 per day to operate. It cost US$350 000 000 to build in 2001 and would cost double that to build today.

The rig had apparently just finished cementing steel casing in place at depths exceeding 18 000 feet when the fire broke out. Under normal operating conditions, the rig would have been expected to move to its next drilling location and then return later to commence production. Instead, it caught fire. The flames shot up 200-300 feet into the air and could be seen 35 miles away.

The fire was extinguished but oil continued to flow and collected on the surface of the water. The flow of oil was estimated at between 790 000 and 16 000 000 litres of crude oil per day.

CASE STUDY

In August 2010, BP claimed that the leak had been plugged and that no more oil was escaping from the well the clean up continues.


4 read the case study west Atlas oil spill and answer the questions.

a what occurred in this situation?

b Explain some of the environmental consequences of this oil spill.

c Explain who or what may have suffered loss or harm as a result of this oil spill and who may have a civil claim against the owners of the oil rig.

WeST ATLAS oiL SPiLL

The oil spill in the Timor Sea off the west Australian coast began in August 2009 and was eventually plugged in November 2009, 12 weeks later. Some experts suggested that as much as 3000 barrels of crude oil a day had leaked from the montara well. After three previous attempts to stop the leak had failed, tens of thousands of litres of heavy mud were successfully used to stop the leak,.

The drilling rig, which was ruined after it caught fire, was estimated to be worth $250 million and the topside (platform) around $16 million.

Biologists said that the effects of the montara oil spill could be catastrophic for marine ecosystems. The oil would have toxic effects on birds, marine invertebrates, coral and marine algae. whales and flatback turtles were often seen in the water around the well. Fishers observed sick and dying marine life and the absence of birds in the area.

CASE STUDY

west Atlas oil spill in the Timor Sea


4 read the case study Chinese coal carrier stuck on the Great Barrier reef and answer the questions.

a what negligence has occurred in this situation? Explain in relation to what has to be proved in a negligence case.

b how will this negligence affect the environment?

c what has been suggested to try to ensure this sort of event does not happen again?

chineSe coAL cARRieR STucK on The gReAT BARRieR Reef

on 3 April 2010, a 230-metre Chinese coal carrier, Shen Neng 1, ran aground on the Great Barrier reef. It was off course in a restricted zone, 15 km outside the shipping lane and 70 km east of Great Keppel Island.

CASE STUDY

Chinese coal carrier stuck on the Great Barrier reef leaking oil


exxon vALDez oiL SPiLL

The Exxon Valdez oil spill occurred in the prince william Sound in Alaska on 24 march 1989. It hit the Sounds Bligh reef and spilled an estimated 40.9 million litres of crude oil.

prior to hitting Bligh reef, the shipmaster had to seek permission to go through the inbound lane because the outbound lane was obstructed with icebergs. Following the manoeuvre the shipmaster left the third mate in charge of the wheelhouse and an able seaman at the helm, neither of whom had been given their mandatory six hours off duty before their 12-hour watch began. The ship was on autopilot.

The remoteness of the area hampered attempts at cleaning up the spill. The region is a habitat for salmon, sea otters, seals and seabirds. The oil eventually covered 2100 km of coastline and 28 000 square kilometres of sea.

In Baker v. Exxon, an Anchorage jury awarded US$287 million compensation in damages and US$5 billion for exemplary damages. The exemplary damages were equivalent to a single years profit by Exxon at that time. on appeal by Exxon, the exemplary damages were reduced to US$4 billion. This was later increased to US$4.5 billion, but the Supreme Court of the United States then reduced the exemplary damages to US$500 million. Exxon was able to claim cleanup costs from the insurance company.

Exxon paid damages of US$63.5 million to a group of Seattle seafood producers.In response to the spill, the United States Congress passed the Oil Pollution Act 1990.

CASE STUDY

The vessel was carrying about 65 000 tonnes of coal from Gladstone and had 950 tonnes of oil on board. Queensland premier Anna Bligh told reporters the carrier was in danger of breaking apart and police were standing by to evacuate the 23 crew on board if necessary.

The ship hit the reef hard. It was close to breaking up and was rapidly leaking oil. The Queensland Government sent specialised crews to salvage the ship. A national oil spill response plan was activated.

Conservationists have expressed outrage that bulk carriers can travel from Gladstone to Cairns without a marine pilot to guide them through the Great Barrier reef. Capricorn Conservation Council spokesman Ian herbert said, who knows what damage will be done to our local coral reefs and marine animals from the oil spill from the ship?

As rescuers stood by to evacuate the 24 crew from the crippled ship, Australian maritime Safety Authority chairman leo Zussino called for increased surveillance to ensure that thousands of vessels passing through the world heritage site stayed in designated shipping lanes.

In 2009, Australian joined an international convention called the Bunker pollution Convention. This allows states and others to claim compensation where there is a leakage of fuel oil carried aboard ordinary merchant ships, without having to prove fault.

5 read the case study Exxon Valdez oil spill and answer the questions.

a Explain how Exxon Shipping Company was negligent.

b what damages were paid in this case?

c what legislative action was taken after this disaster?

d investigationInvestigate and report on some of the environmental consequences of this disaster.


issue environment and healthPeople throughout the world are increasingly becoming aware of the fact that unclean air, water and soil can have a detrimental impact on the health and wellbeing of a community.

Damage to the ozone layer in the upper atmosphere has resulted in an increase in UV light transmission, which has led to an increased incidence of melanoma and cataracts. Climate change has resulted in more heat-stress-related illness and vector-borne diseases. Contaminated water supplies are often implicated in the spread of diarrhoeal and other life-threatening diseases.

Some of the chemicals found in everyday products can cause cancer in animals and humans. Pesticides, some cosmetics, dyes, drugs and gasoline have been shown to cause cancers in animals.

In August 2003, Europe suffered its worst heatwave in recent memory. In France, temperatures peaked at about 40C; unprepared for that kind of heat, many people mostly the sick and elderly succumbed. In all, nearly 15 000 deaths in France that summer were attributed to the high temperatures; across Europe, the scorching weather may have claimed as many as 35 000 lives.

Nitrogen dioxide is an air pollutant that contributes to the formation of photochemical smog, which can have significant impacts on human health. The major source of nitrogen dioxide in Australia is the burning of fossil fuels: coal, oil and gas. Most of the nitrogen dioxide in cities comes from motor vehicle exhaust (about 80 per cent). Other sources of nitrogen dioxide include petrol and metal refining, electricity generation from coal-fired power stations, other manufacturing industries and food processing. Unflued gas heaters and cookers are the major sources of nitrogen dioxide in Australian homes.

The main effect of breathing in raised levels of nitrogen dioxide is the increased likelihood of respiratory problems. Nitrogen dioxide inflames the lining of the lungs, and it can reduce immunity to lung infections. This can lead to problems such as wheezing, coughing, colds, flu and bronchitis.

The capacity of the legal system to respond to demands for changeThe law is constantly changing in response to needs in the community. Some of these needs are the result of disasters that have occurred. These disasters highlight problems with the law and the lawmakers try to change the law to protect the environment.

In Victoria, the Environment Protection Authority (EPA) has been established to protect, care for and improve our environment. The EPA is responsible for preventing or controlling pollution (including noise) and improving the quality of the environment. One of the tools available to the EPA is the licensing of premises that might present a risk to the environment. Section 20 of the Environment Protection Act 1970 requires occupiers of some specific premises to be licensed, such as premises where industrial waste is handled. These premises are defined in the Environment Protection (Schedules Premises and Exemptions) Regulations 2007. The licensing scheme demands that certain standards are observed so we can be more confident of the licensees capacity to act responsibly.

EPA is in the process of reforming this system. Under the changes, the EPAs licensing reform program will result in environmental licences that are more accessible and easier to understand. This will result in a more streamlined, consistent and efficient licensing system.

In August 2010, in Xian, China, 45 people died in three days, due to a heat wave.


The air quality in Victoria is also protected by the EPA. Melbournes air quality has improved since the 1980s. In an international context (compared to similar urban centres) Melbournes air quality is relatively good. Particles of contaminating matter carried in the air are of major concern for the environment. The air particles come from motor vehicles, domestic fuel burning, volcanoes, bushfires and industrial processes.

The EPA is responsible for preventing land contamination from waste disposal and industrial activities. The Environment Protection (Industrial Waste Resource) Regulations 2009 provide regulations for the disposal of industrial wastes. Excessive noise is prohibited at certain times by the Environment Protection (Residential Noise) Regulations 2008.

The EPA has a key responsibility in protecting beneficial uses of land. Many of these uses are regulated or controlled through measures to prevent contamination of land and groundwater. Land contaminated by former waste disposal, industrial and similar activities is frequently discovered during changes to land use for example, from industrial to residential use. In most cases these can be managed at the time that the change of land use occurs.

methods and institutions for resolving disputes

The environment Protection AuthorityIt is everyones duty to help protect the environment. If you see pollution occurring, you can report it to the Environment Protection Authority (EPA). Pollution can occur at any time of the day or night, at any time of the year and in both metropolitan and country areas. There is a 24-hour EPA Pollution Watch Line, which will take calls on environmental incidents, such as smoke or odours from an industry or business, spills or slicks in waterways, illegal dumping of wastes, or noise from a factory or industrial complex.

When pollution incidents are reported to the EPA, it is possible for EPA or other government agencies to take action to limit the damage or potential damage to the environment. Rapid notification can help the EPA to identify the cause and source of the problem for further enforcement action against those who have created the pollution. Pollution Watch Line calls often result in either fines or prosecutions against polluters.

If an individual or group is found to be responsible for pollution, a person who has suffered loss or harm as a result of the pollution could sue the polluters for compensation.

environmental Defenders officesThe Australian Network of Environmental Defenders Offices Inc (ANEDO) consists of

nine independently constituted and managed community environmental law centres located in each state and territory of Australia.

Each EDO is dedicated to protecting the environment in the public interest. They provide legal representation and advice, take an active role in environmental law reform and policy formulation, and offer education programs designed to facilitate public participation in environmental decision making.

LawyersPeople who have a legal problem can ask for assistance from lawyers, for example, if they have been injured as a result of someones negligence or someone has been trespassing on their land. Some lawyers will act on a no win no fees basis in environmental disputes. This means that the party employing the lawyer only pays the lawyers fees if the case is won. The fees are deducted from the compensation payment. If the case is lost, no legal fees are charged, although the costs of running the case will have to be paid. Schemes such as Law Aid can help with these costs,.


The victorian ombudsmanThe Victorian Ombudsman is an independent officer of the Victorian Parliament. The office was established under the Ombudsman Act 1973 (Vic.).

The ombudsman seeks to ensure that the public sector maintains the highest possible standards in delivering services to all Victorians. The ombudsman will investigate the actions of government departments or other government bodies such as local councils on behalf of individuals who feel that they have been unfairly treated by these actions.

The office also carries out other important functions to help ensure that state entities, such as local councils comply with key pieces of Victorian legislation such as the Whistleblowers Protection Act 2001, Freedom of Information Act 1982 and the Charter of Human Rights and Responsibilities Act 2006.

MediationMediation is an informal method of dispute resolution used as an alternative to going to court. It is cheaper, quicker and less intimidating than taking a matter to court and is often used in civil cases. Decisions made during mediation are not binding, but the parties will usually enter into a binding deed of settlement.

vcATIssues that arise relating to health and the environment can involve planning decisions by the local council. For example land that has been incorrectly zoned for houses.

The Planning and Environment List at VCAT deals with applications by people seeking a planning or building permit and objectors to the granting of building permits. If a person has been denied or granted a planning or building permit from a local council, either the applicant or an objector can take the matter to VCAT to review the decision to grant/deny the permit. VCAT takes into consideration a wide range of environmental issues when making the decision, such as protection of the environment, heritage issues and the impact on the environment and surrounding residents.

courtsMany environmental cases are taken to the Supreme Court of Victoria or the Federal Court for a binding resolution. In this way precedents can be set, which can be followed in the future. This is particularly important for cases that involve an ongoing problem such as illness caused by asbestos. Environmental issues often result in many people being affected, in which case a class action can be taken to court.

In Australia, class actions (or representative proceedings as they are formally known) can be commenced by one person making a claim in circumstances where seven or more people have claims that arise out of the same or related circumstances.

If a group of people have been similarly injured by the same individual or group, they can join together to bring a civil action. In this way they can support each other and share the costs. It is also a more efficient way of dealing with a number of claims, saving court time and the time of court personnel. Class actions enable people to pursue civil actions that they may not have been able to afford to pursue as individual cases.

The courts may also become involved if a decision in VCAT is made and appealed. The Supreme Court or the Court of Appeal have the power to hear the appeal.


outcome 3

At the completion of this chapter you should be able to explain one or more area/s of civil law, and discuss the legal systems capacity to respond to issues and disputes related to the selected area/s of law.

Area of study 3

Key knowledge

legal principles relevant to the selected area/s of law

a contemporary issue for the selected area/s of law

the capacity of the legal system to respond to demands for change

methods and institutions for resolving disputes arising under the selected area/s of law.

Key skills

define key legal terminology and use it appropriately

research and gather information about legal cases and issues, using print and electronic media

explain the current law and discuss related legal issues for the selected area of law

discuss the ability of the law to respond to demands for change

explain the different methods of dispute resolution to resolve legal problems.

Environment and health

1 what is the role of the EpA? (1 mark)

2 how is the EpA attempting to reduce noise pollution? (1 mark)

3 how is Victorias air quality protected? (1 mark)

4 what is the role of the Victorian Environment Defenders office? (2 marks)

5 how can you help the environment by contacting the EpA if you see pollution occurring? (2 marks)

6 what action can the EpA take in response to a report of pollution occurring? (2 marks)

7 how can this help a person who has suffered loss or damage as a result of the pollution? (1 mark)

8 If you have suffered loss or harm as a result of pollution, but have no money to pursue a civil case against the polluters, how can lawyers help you? (1 mark)

9 read the case study Cranbourne gas emission class action on the next page and answer the questions.

a Describe what occurs in a class action. Use this case to illustrate the points made. (2 marks)

b why are the residents of Brookland Greens Estate bringing a class action against the City of Casey? (1 mark)

aSSeSSment taSK Structured aSSignment


c what is mediation? why do you think it is being used in this case? (2 marks)

d what role is the EpA playing in this case? (1 mark)

e This action is being launched on a no win no fees basis. what does this mean? (1 mark)

f what is the role of the Victorian ombudsman? how was the ombudsman involved in this case? (2 marks)

Cranbourne gas emission class actionA firm of melbourne lawyers is conducting a class action on behalf of hundreds of property owners whose properties have been affected by a methane gas leak from the disused Stevensons road landfill in Cranbourne. The statement of claim lodged with the Supreme Court of Victoria seeks unspecified damages from the defendant, the City of Casey. over 500 households have signed up to be part of the class action against the City of Casey. In September 2008, 29 households were evacuated from the Brookland Greens Estate after the Country Fire Authority warned that methane gas levels had reached explosive levels in at least one home.

The residents of Brookland Greens Estate are claiming that the value of their properties has dramatically dropped since they were first built. It is estimated that the value of more than 800 properties was $320 million (based on an average of $400 000 each). The current value of the properties is unknown.

The property owners are alleging that the City of Casey, the sole occupier and EpA licence holder of the Stevensons road landfill since 2005, has failed in its management of the site. They claim the Council has ignored repeated warnings from the EpA since 2001. The backyard of the lead plaintiffs in the action, matthew and Theresa wheelahan, is only 30 metres from the landfill. Their home was valued at $424 000 in September 2008, just before the methane leak scare. The wheelahans chose the best house they could afford as an investment for the future. They are now paying a monthly mortgage on a house that they no

Cranbourne landfill near the Brookland Greens Estate


10 read the case study Burnie Port Authority v. General Jones Pty Ltd . what occurred in this case? how was Burnie port Authority negligent? (2 marks)

longer know the value of. They feel they cannot spend money creating a garden and building much-needed decking because they feel they would be spending money that they could not recoup.

The case was set down for mediation in 2010.Following this incident, EpA investigated other landfills in Victoria to assess if any significant risk was

posed from landfill gas emissions affecting neighbouring properties. The EpA concluded in April 2009 that the emissions were down to a safe level but regular monitoring by the households was essential. The Victorian ombudsman reported on the issue in october 2009. The City of Casey has worked to improve gas emissions from the landfill site. The EpA continues to monitor the City of Caseys performance in managing their environmental obligations under the Environment Protection Act 1970.

Burnie Port Authority v. General Jones Pty Ltd (1994) 68 ALJR 331Burnie port Authority owned a building used to store a large quantity of frozen vegetables. The building was undergoing renovations. The building contained 30 boxes of expanded polystyrene, which was insulating material. The trial judge found that the employees of a welding company, w and S, were negligent in their welding practices. During the welding, sparks of molten metal fell upon one or more of the boxes of insulating material causing a very fierce fire.

The law of negligence applies in this case. The high Court on appeal held that, applying principles of negligence, a person who takes advantage of the control of premises to introduce a dangerous substance, to carry on a dangerous activity or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another.

11 read the case study Andrea Bowles v. Tien Tien Cafe Bar and answer the questions.

a how was Tien Tien Cafe Bar negligent in this case? (2 marks)

b what is environmental tobacco smoke? (1 mark)

c what harm did the plaintiff suffer? (1 mark)

d what was the outcome in this case? (1 mark)

Andrea Bowles v. Tien Tien Cafe Bar (Melbourne Magistrates Court, 13 September 2000)This was a precedent-setting case involving a melbourne restaurant diner who had suffered a debilitating asthma attack as a result of exposure to environmental tobacco smoke (ETS). The complainant alleged that the restaurant had: failed to enforce the no-smoking rule in the non-smoking area, failed to adequately separate the smoking and non-smoking areas, and not adequately ventilated the premises.

This was the first case in Australia in which judgment was passed on the rights of restaurant customers affected by ETS and the obligations of restaurants that offer non-smoking sections.

The court found that the cafe had breached its contract to offer a non-smoking area and had been negligent in its duty of care towards Andrea Bowles, who was awarded $7000 in compensation.


12 read the case study Sharp v. Port Kembla RSL Club and answer the questions.

a what does causation refer to? how did the court establish causation in this case? (2 marks)

b Explain why this case was successful with reference to what has to be proved for a successful case of negligence. (2 marks)

c why was no reason for the decision given in this case? (1 mark)

d what was the outcome of the case? (1 mark)

e why could this situation not happen today? (1 mark)

Sharp v. Port Kembla RSL ClubIn the case of Sharp v. Port Kembla RSL Club (2001) NSwSC 336, an employee recovered damages from her employer on the basis that her exposure to environmental tobacco smoke (ETS) in the course of her employment, caused, or materially contributed to, the development of laryngeal cancer (throat cancer).

The case was decided by a jury, so no reason for the decision was given. The trial judge gave the jury detailed directions over more than two days relating to the way in which they were obliged by the law to assess the evidence on causation.

The plaintiff had to prove, on the balance of probabilities, a causal connection in the legal sense between her exposure to ETS and her laryngeal cancer.

The plaintiff provided evidence showing that 83 per cent of laryngeal cancer in men and 78 per cent in women is attributable to active smoking. As it is established that cigarette smoke causes cancer in humans, medical evidence would suggest that inhalation of tobacco smoke presents a danger of cancer, irrespective of the amount inhaled. It is therefore reasonably expected that ETS will cause laryngeal cancer, although the risk is likely to be less than if the person was a smoker.

marlene Sharp was employed for 17 hours per week from 1972 to 1984 at the port Kembla hotel, and later for 25 hours per week at port Kembla rSl Club between 1984 and 1995. The rSl Club was air-conditioned, but the air-conditioner was often out of service. There were no windows in the bar areas and no smoke-free zones. The atmosphere was described as smoky. She did not smoke and was not subjected to smoking in her home.

In 1995 Sharp underwent neck surgery to remove the cancer. She was described as recovering well.The jury showed that they accepted that, more probably than not, ETS at the port Kembla rSl Club

caused, or materially contributed to Sharps cancer. The jury awarded Sharp damages of $466 048.

13 read the case study Toxic mudflow in Indonesia and answer the questions.

Toxic mudflow in IndonesiaA toxic mudflow in Indonesia, emanating from a gas project minority-owned by Australian-based Santos, has become an environmental, public health and public relations disaster.

The mudflow and toxic gas emissions started on 27 may 2006. In February 2010 it was reported that it continues to spew 60 000 cubic metres of watery, poisonous mud across East Java daily. This disaster has led to nearly 50 000 internally displaced people in Indonesia, who lack basic services and are waiting for full compensation after the mudflow destroyed homes and farmland. About 14 000 houses have been submerged.

There has been much debate about whether the mudflow was caused by the activities of pT lapindo Brantas (partly owned by Santos) or a major earthquake two days before in Yogyakarta province, some 300 km away. The Supreme Court acquitted lapindo in September 2009, finding insufficient evidence to link its drilling activities to the mudflow.


a Explain what occurred in this case. (1 mark)

b why do you think the people living in the area should be eligible for compensation? (1 mark)

c This case demonstrates that it is possible to have one incident lead to a civil law case of negligence and a criminal negligence case. Explain. (2 marks)

The toxic mudflow in Indonesia14 read the case study Greens commit to $1.3 million Chemical Trespass Unit and answer

the questions.

a what action are the Tasmanian Greens promising to take? (1 mark)

b how will this help the environment? (1 mark)

Greens commit to $1.3 million Chemical Trespass UnitIn February 2010, the Tasmanian Greens released their $1.3 million Taking Chemical Trespass Seriously: Protecting Tasmanians from Chemical Pollution policy commitment. Under this policy, it is proposed that a Chemical Trespass Unit be established within the states Environment protection Authority.

Greens leader Nick mcKim mp called for an independent investigation to be held into allegations that toxins associated with Eucalyptus nitens plantations are contaminating local water catchments. mcKim said This investment of $1.3 million over three years will deliver a Chemical Trespass Unit to clean up Tasmanias waterways and ensure that people are not drinking chemically contaminated water.

Clean water is a fundamental and serious issue, he said. we have seen mud coming out of taps in Campbell Town, and simazine has come out of the taps in orford, and it is time we looked after our catchments, looked after our rivers and looked after our people.


15 read the case study maralinga on the next page and answer the questions.

a what compensation was given in 1994? (1 mark)

b investigationInvestigate what occurred at maralinga and what has happened to compensate the people who suffered as a result. (4 marks)

Nuclear testing at maralinga between 1955 and 1963


MaralingaBritish nuclear tests occurred between 1955 and 1963 at the maralinga site, part of the woomera prohibited Area in South Australia. A total of seven major nuclear tests were performed. The site was contaminated with radioactive materials. A cleanup was attempted in 1967 but a report in 1985 found that significant radiation hazards still existed at many of the maralinga test areas.

In the 1980s some Australian servicemen who served at maralinga and some traditional Indigenous owners of the land at maralinga were suffering blindness, sores and illnesses such as cancer.

In 1994, the Commonwealth Government reached a compensation settlement with the maralinga Tjarutja people. They were to pay $13.5 million in settlement of all claims in relation to the nuclear testing. many did not benefit from this settlement.

In December 2009, about 120 Australians, more than half of them widows, filed their own class action in Britain. A landmark British court ruling gave British maralinga veterans the right to sue their government. This has opened the door for Australians to pursue legal action.

16 lawmakers need to do more to ensure environment protection and ecological sustainability. Discuss with reference to current laws, recent cases and possible changes to the law. (5 marks)

(Total 50 marks)

pair and shareDiscuss the following issues with a classmate. Choose at least five of the issues shown below, and take turns to provide either two arguments for or two arguments against each of your chosen issues. You will need to research the topics:

logging in old-growth forests

genetically modified crops grown in Australia

greater use of recycled water for drinking purposes

more desalination plants

drilling for oil in the Great Barrier reef or Antarctica

uranium as a fuel source

freeways versus public transport

very fast trains versus air travel.

Change partners and gather three newspaper articles, magazine articles or information from the internet that relates to an environmental issue. make sure you:

source the material

provide the date of publication

explain the relevance of the material collected to one or more environmental issues.

aSSeSSment taSK report


Using the information you have gathered as your focus, write a general report that explains:

how the environment is protected in Australia

conflicting attitudes relating to at least one environmental issue

at least three laws that help to protect the environment.

Create an annotated visual display informing the public about the environmental issues. In your display include:

a description of the issues involved

an explanation of the purpose of the relevant laws or suggested changes in the law.

Your presentation can be one or a combination of:

a poster/brochure/booklet

presentation slides

a multimedia presentation

a webpage.

Share your findings with the class.

(Total 15 marks)


EIA

Documents

areas of civil law

natural environment

selected areas of law

sustainable environment

civil action person

australian environment

civil legal action

law of torts