Almost twelve months after the Commonwealth introduced the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the Federal Court will soon hear a test case on the new legislation.
Although the case relates to a North Queensland farmer, it will have implications for any property developer with a project near areas of environmental significance such as the wetlands of Moreton Bay or the Great Barrier Reef.
Last December, an interim injunction was sought from an "interested person" to prevent a lychee farmer in Cardwell from electrocuting spectacled flying foxes.
The injunction was sought on the grounds that his actions either had or would have a significant impact on the world heritage values of the Wet Tropics World Heritage Area, which was adjacent to the farm.
The injunction was sought although the farmer held a "Damage Mitigation Permit" to kill up to 500 flying foxes per year and although the flying foxes were not listed as an endangered species.
The Court decided not to grant an interlocutory injunction because it was ten days before the end of the lychee season and because the applicant did not offer an undertaking as to damages.
However, a full hearing of the Court later this year is expected to decide whether the electrocution of the flying foxes significantly impacted the world heritage values.
The case highlights the ability of interest groups and individuals to seek an injunction under the EPBC Act to prevent an act or omission.
As of 10 May 2001, a number of urban development projects had been referred to the Minister to determine whether they needed approval under the EPBC Act, however, less than 10% of those required approval.
In Queensland, seven projects were referred to the Minister, however, as yet, none require approval.
Despite the limited cases requiring approval under the EPBC Act to date, property developers need to be aware of the Act and implications from the upcoming court case.
Likewise, they need to understand that impact assessment studies can be used to determine whether referral to the Minister will be necessary.
Janette Hewson is a senior lawyer in the Property and Environment Group at Freehills, Brisbane.
Phone 07 3258 6657.
