Rose Robin Resorts Pty Ltd ('the company') is planning to build a new conference center with an attached eco resort on a 50 hectare block of land located in the Blue Mountains area in NSW ('the eco resort'). The eco resort will involve construction of 40 eco-style wooden cabins. The eco resort will primarily be targeted for use by bird-watchers visiting the Blue Mountains area and bird-watcher conferences. Unfortunately, in order to construct the eco resort, the company will need to clear areas of vegetation across 3 hectares of the land where the eco resort is to be located. This will involve the clearing of approximately 45 Bristly Shield Fern plants ( Lastreopsis hispid) and 250 Acacia gorgoniid, which is a shrub. This will leave only 5 Bristly Shield Ferns and 15 Acacia gorgoniid remaining on the eco resort site. Bristly Shield Ferns are listed as a threatened species (with endangered status) under the Biodiversity Conservation Act 2016 (NSW) ('BC Act'). They are not listed under the Environment Protection and Biodiversity Conservation Act 1999 (Ct.) ('EPBC Act'). Acacia gorgoniid is listed as a threatened species (with endangered status) under both the BC Act and EPBC Act. You can assume for the purposes of this question that there are approximately 2,000 Acacia gorgoniid remaining in Australia. Furthermore, Bristly Shield Ferns have only rarely been located in NSW, with only one other known stand of the fern currently known to occur in the State, also located in the Blue Mountains area. You can assume that there are only 600 ferns at that other location. The company has obtained all necessary approvals under NSW laws and is currently looking into whether it may need to obtain approval under the EPBC Act. The company believes the eco resort will bring further tourism to the Blue Mountains area together with 35 much needed permanent jobs for the local area and a further 220 temporary jobs relating to construction of the eco resort. An environmental group based in the Blue Mountains area known as Protect Precious Biodiversity ('PPB') has caught wind of the proposed eco resort and is not happy given the impact on the Bristly Shield Ferns and Acacia gorgoniid. Additionally, the group members believe that all land clearing is inconsistent with reducing the threat of climate change. The members of PPB also think that the company has a poor environmental record as it was recently prosecuted and convicted for a water pollution offence by the NSW Environment Protection Authority as a result of sediment flowing into a creek due to poor management at another one of the company's sites where a new resort was also being constructed. PPB members are concerned that if rainfall occurs during construction of the eco resort, runoff containing sediment laden water from the construction site may flow into the Greater Blue Mountains World Heritage Property area and waters within it. (The Greater Blue Mountains area is listed as a World Heritage Property under the World Heritage Convention.) The World Heritage Property area is located 500 metres from the eco resort site and there is a creek within the World Heritage Property area that is located 700 meters downhill of the eco resort site. PPB members are also concerned construction noise will impact wildlife within the World Heritage Property area. PPB was established in 2007 and has been undertaking research and conservation works in relation to biodiversity and threatened species within the Blue Mountains area since that time. The objects of PPB include to 'Undertake research and conservation projects that seek to protect, preserve and restore biodiversity, 4 including threatened species, within the Blue Mountains area of NSW, including as a result of the increasing threat of climate change.' 

 

The company has requested your advice in relation to the following: 

(a) Whether the proposed eco resort may require approval under the EPBC Act. (Note: you do not need to discuss any exemptions.) 

(b) Does the company have an obligation to refer the proposed eco resort to the relevant Commonwealth Minister under the EPBC Act in order for the Minister to make a determination as to whether the project constitutes a controlled action? If the company did not refer the project to the Minister for such a determination, who else may be able to? Could PPB refer the matter to the Minister? 

(c) If the Commonwealth Minister determines that approval is required under the EPBC Act, explain what matters the Minister must, may and cannot consider in making a determination as to whether to grant approval under the EPBC Act, particularly in light of the facts raised above. 

(d) PPB have threatened to take legal action if the eco resort is approved. The company has asked you to advise whether, if the Commonwealth Minster grants approval for the project under the EPBC Act (assuming that approval is required), PPB would have any rights to challenge the Minister's decision to grant approval under the EPBC Act in legal proceedings in the Federal Court of Australia

Answer rating: 100% (QA)

a The proposed eco resort may require approval under the EPBC Act if it is likely to have a significant impact on a matter of national environmental s... View the full answer