Environment & Planning Litigation

NSW has the most complex environmental and planning legislation in Australia. Unless carefully managed, the legislative complexity together with third party rights of appeal, can result in costly and lengthy litigation. In addition, there are numerous regulators including local councils, the Department of Planning and the Department of Environment Climate Change and Water, with each having extensive powers of investigation and enforcement.

Our work covers a broad range of dispute scenarios including, proceedings in the main jurisdictions of the Land and Environment Court, local court prosecutions and, Supreme and Federal Court matters arising from pollution and contaminated land. Our work also covers negotiation and mediation of such disputes.

Our approach

Henry Davis York's approach is to resolve the dispute in the most cost effective manner. We have considerable expertise in negotiated settlements and using formal and informal mediation to resolve the cases or reduce the issues in dispute. We regularly act for clients in formal mediations without the use of barristers. All of our senior and junior lawyers have experience appearing in court and it is our practice to undertake most interlocutory court appearances without the use of barristers. Our partners also do court appearance work and regularly appear in class 1 appeals and class 5 prosecutions.

We minimise costs by resourcing each matter efficiently without counsel when appropriate. We work in small teams in close collaboration with our clients.

When a dispute arises, our thorough knowledge of environmental and planning legislation and the relevant issues gives clients a strategic advantage in achieving their objectives. Our expertise includes:

• planning appeals arising from refusal or deemed refusal of consents
• objecting to proposed developments
• judicial review in class 4 and environment disputes
• disputes arising from contaminated land
• pollution and other environmental prosecutions
• compulsory acquisition and land valuation matters
• appeals in relation to EPA licences
• claims in the Local, District and Supreme Court under negligence and nuisance for pollution
• local court prosecutions for environmental offences.

Hunters Hill contaminated land

We acted for the Vassiliou family in proceedings against the NSW Health Administration Corporation, over radioactive contamination on residential land at Nelson Parade, Hunters Hill. The matter involved extensive negotiations with the NSW Government, a major media campaign, the orchestration of a major Parliamentary Inquiry as well as Supreme Court proceedings. Shortly after the litigation started, the NSW Government agreed to settle the proceedings by purchasing the contaminated site and reimbursing the Vassilious' their associated costs. The case combined our specialist expertise in contamination and environmental law and our experience in Supreme Court litigation and negotiating settlements.

Doueihi v Roads and Traffic Authority

We acted for the Roads and Traffic Authority (RTA) in a dispute over a parcel of land at Westmead which it had compulsorily acquired for the construction of the M7 Liverpool to Parramatta Transit Way. The Court awarded compensation in an amount less than that offered by the RTA, an appeal to the Court of Appeal was rejected and the RTA obtained a costs order against the claimant.

Environment Protection Authority v Unomedical

We acted for Unomedical Pty Limited in a prosecution by the EPA for an alleged failure to prevent or minimise air pollution. Our client pleaded not guilty on the basis that Pittwater Council induced our client to make an error of law. This was the first time this defence had been used in Australia, although it is recognised and well-established in other common law jurisdictions such as Canada, USA, UK and New Zealand. Judgement is yet to be delivered.

Scrap Realty v Botany Bay City Council

We represented Scrap Realty in a groundbreaking Class 1 appeal to the Land and Environment Court. The appeal was successful and made new law on the scope of applications under section 96 of the Environmental Planning and Assessment Act 1979.