Environmental Law: Outcome

15
environmental 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
the capacity of the legal system to respond to

demands for change
a contemporary issue for the selected area/s of

law
methods and institutions for resolving disputes

arising under the selected area/s of law.
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ACCESS AND JUSTICE
Key legal terminology

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

who has the burden of proving the case.
Kyoto Protocol International convention that aims to

reduce greenhouse gas emissions.
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.
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.
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 law

Environmental 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.
chapter 15 environmental law
Commonwealth legislation
The 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 legislation
The 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.
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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.
Recycling waste
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.
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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 environment

Little 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 use
People 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 twobedroom 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 water
Recycled 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.
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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.
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.
Grey water
Grey 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 plant
Desalination plant
site at Wonthaggi
A 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.
Pollution
The 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.
Wind farm
A 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 10kilometres from
Daylesford. It will generate 12200 megawatt hours
a year of electricity. This is significantly more power
that is needed for the 1887 homes in the town.
Effects of global warming

Research 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 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.
The Kyoto
Protocol came
into force in 2005
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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 15.1

Purpose 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 nuisance

The 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.
Negligence
The 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.

Negligence
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.
CASE STUDY
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.
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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.
Trespass to land
Merely passing
across another
persons land
amounts to
trespass
Unauthorised 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.
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 trespass
Light 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.
Toxic trespass
Chemical 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.
A spotlight from
a Waikiki hostel
shines into
the rooms of a
neighbouring
hotel
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ACCESS AND JUSTICE
Toxic trespass
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.
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.

Trespass 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?
CASE STUDY
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.
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?
CASE STUDY
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.
Nuisance
The 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.
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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.
Trees
Property 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 smells

Neighbours 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.

Nuisance
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?
CASE STUDY
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 offcuts, cardboard, old machinery) that Joan piles up outside the property on a monthly
basis.
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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.
CASE STUDY
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.
Genetically modified crops

Genetically 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.
Fruit of the future

genetically
modified to be a
combination of
an apple and an
orange
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.
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ACCESS AND JUSTICE
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
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 foods
Genetically 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
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 foods
Genetically 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
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ACCESS AND JUSTICE
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 negligence

A 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 nuisance

Among 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 land
Trespass 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.

Genetically 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 Investigation
Investigate and report on the
use of GM crops in Australia.
Logging in oldgrowth forests

Ideally, 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
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ACCESS AND JUSTICE
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 oldgrowth 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
CASE STUDY
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.
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Logging 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 Investigation
Investigate anti-logging protests and write a short report describing a protest that is
taking place or has taken place.
Oil-spill pollution
When 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.

Oil-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.
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.
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$350000 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.
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.
CASE STUDY
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.
West Atlas oil spill in the Timor Sea
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ACCESS AND JUSTICE
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?
CASE STUDY
Chinese coal carrier stuck on the Great Barrier Reef

Chinese coal
carrier stuck on
the Great Barrier
Reef leaking oil
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
70km east of Great Keppel Island.
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 Investigation
Investigate and report on some of the environmental consequences of this disaster.
CASE STUDY
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.
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ACCESS AND JUSTICE
In August 2010,
in Xian, China,
45 people died in
three days, due to a
heat wave.
Issue environment and health

People 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 lifethreatening 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

change
The 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.
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 Authority
It 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 Offices

The 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.
Lawyers
People 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,.
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ACCESS AND JUSTICE
The Victorian Ombudsman

The 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.
Mediation
Mediation 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.
VCAT
Issues 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.
Courts
Many 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
Key skills
legal principles relevant to the selected area/s of

law
define key legal terminology and use it

appropriately
a contemporary issue for the selected area/s of law
research and gather information about legal cases

and issues, using print and electronic media
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.
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.
ASSESSMENT TASK structured assignment

Environment and health
1 What is the role of the EPA? (1mark)
2 How is the EPA attempting to reduce noise pollution? (1mark)
3 How is Victorias air quality protected? (1mark)
4 What is the role of the Victorian Environment Defenders Office? (2marks)
5 How can you help the environment by contacting the EPA if you see pollution occurring?
(2marks)
6 What action can the EPA take in response to a report of pollution occurring? (2marks)
7 How can this help a person who has suffered loss or damage as a result of the pollution?
(1mark)
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? (1mark)
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.
(2marks)
b Why are the residents of Brookland Greens Estate bringing a class action against the
City of Casey? (1mark)
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c What is mediation? Why do you think it is being used in this case? (2marks)
d What role is the EPA playing in this case? (1mark)
e This action is being launched on a no win no fees basis. What does this mean?
(1mark)
Cranbourne landfill
near the Brookland
Greens Estate
f What is the role of the Victorian Ombudsman? How was the ombudsman involved in
this case? (2marks)
Cranbourne gas emission class action

A 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
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.
10 Read the case study Burnie Port Authority v. General Jones Pty Ltd. What occurred in this
case? How was Burnie Port Authority negligent? (2marks)
Burnie Port Authority v. General Jones Pty Ltd (1994) 68 ALJR 331
Burnie 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? (2marks)
b What is environmental tobacco smoke? (1mark)
c What harm did the plaintiff suffer? (1mark)
d What was the outcome in this case? (1mark)
Andrea Bowles v. Tien Tien Cafe Bar (Melbourne Magistrates Court,

13September 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 nosmoking 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 nonsmoking 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.
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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?
(2marks)
b Explain why this case was successful with reference to what has to be proved for a
successful case of negligence. (2marks)
c Why was no reason for the decision given in this case? (1mark)
d What was the outcome of the case? (1mark)
e Why could this situation not happen today? (1mark)
Sharp v. Port Kembla RSL Club

In 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 Indonesia

A 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 300km
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. (1mark)

b Why do you think the people living in the area should be eligible for compensation?
(1mark)
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. (2marks)
14 Read the case study Greens commit to $1.3 million Chemical Trespass Unit and answer
the questions.
The toxic mudflow

in Indonesia
a What action are the Tasmanian Greens promising to take? (1mark)

b How will this help the environment? (1mark)
Greens commit to $1.3 million Chemical Trespass Unit

In 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.
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15 Read the case study Maralinga on the next page and answer the questions.
a What compensation was given in 1994? (1mark)
Nuclear testing at
Maralinga between
1955 and 1963
b Investigation
Investigate what occurred at Maralinga and what has happened to compensate the
people who suffered as a result. (4marks)
Maralinga
British 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. (5marks)
(Total 50marks)
ASSESSMENT TASK report

Pair and share
Discuss 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.
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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 15marks)

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15

the capacity of the legal system to respond to

a contemporary issue for the selected area/s of

methods and institutions for resolving disputes

ACCESS AND JUSTICE

Key legal terminology

plaintiff A person bringing a civil action person

Kyoto Protocol International convention that aims to

private nuisance Unreasonably interference with

negligence Doing or not doing something a

public nuisance An act or omission that interferes

The purpose of the law

chapter 15 environmental law

ACCESS AND JUSTICE

Catchment and Land Protection Act 1994 Established 10 catchment areas

Water (Commonwealth Powers) Act 2008 Referred certain matters relating

chapter 15 environmental law

Things you can do to protect the environment

Did you know?

ACCESS AND JUSTICE

A desalination plant at Wonthaggi in Victoria will provide additional water to Melbourne,

chapter 15 environmental law

Effects of global warming

ACCESS AND JUSTICE

Learning activity 15.1

Negligence, trespass to land and nuisance

chapter 15 environmental law

Learning activity 15.2

Caltex Oil (Australia) Pty Ltd v. Willemstad

Scholem v. NSW Dept of Health (NSW District Court, Sydney,

ACCESS AND JUSTICE

chapter 15 environmental law

ACCESS AND JUSTICE

chapter 15 environmental law

Learning activity 15.3

Salerno v. Proprietors of Strata Plan No. 42724

ACCESS AND JUSTICE

Noise and smells

chapter 15 environmental law

Learning activity 15.4

Working from home

ACCESS AND JUSTICE

Friesen v. Forest Protection Limited

Genetically modified crops

chapter 15 environmental law

Fruit of the future

ACCESS AND JUSTICE

chapter 15 environmental law

ACCESS AND JUSTICE

You may already be eating GM products!

GM crops and negligence

GM crops and private nuisance

Learning activity 15.5

chapter 15 environmental law

4 Identify one group that has

Logging in oldgrowth forests

Old-growth tree in Tasmania

ACCESS AND JUSTICE