In Cooper v Human Rights & Equal Opportunity Commission & Anor the Federal Court has confirmed the obligation to carefully assess disabled access to premises. The case concerned a Council which had approved a building extension which, although complying with the Building Code of Australia ("BCA"), denied proper disabled access. The Court held that the Council had breached the Disability Discrimination Act ("DDA") by permitting the building work.

During the assessment process, the Council had questioned the adequacy of access to the building. However, the developer claimed that to improve disabled access would cause unjustifiable hardship under the DDA due to the costs involved. The Court stated that the Council should have investigated the developer's claims by making its own assessment about whether "unjustifiable hardship" would result.

Relevant authorities, including private building certifiers in South Australia should:

(i) assess whether any development will discriminate in the provision of access;

(ii) assess whether "unjustifiable hardship" as defined in the DDA will occur; and

(iii) if the proposal does discriminate, and there is no "unjustifiable hardship", the proposal should not be approved, even if it complies with the BCA.

IS A DAM DEVELOPMENT?

The Environment, Resources & Development Court in M & B Farmer Nominees Pty Ltd -v- DC Mallala considered whether a dam and loading pad were "development" under the Development Act. The dam involved an excavation of 2 metres below natural ground level and mounding the excavated soil up to 2 metres above ground level. The Court found that the mounds were "structures" and the process of forming them "construction". Hence the dam constituted "building work" for the purposes of the Act and required development approval.

The EPA has achieved its first successful prosecution for the offence of causing material environmental harm. Mobil pleaded guilty to allowing the escape of around 200 ml of Ethyl Mercaptan from an injection system at its Lonsdale Refinery. An employee ignorant of the correct procedures, attempted to clear a blockage in the system by opening a bleeder valve. This allowed the escape of the strong smelling Mercaptan leading to the evacuation of workers at nearby factories.

In determining the penalty, the Court considered:

• the extent of harm caused or likely to the environment;
• practical measures that could have been taken to prevent harm;
• the extent that Mobil could have foreseen the harm; and
• the extent that Mobil had control over the causes of the offence.

The Court found that Mobil had comprehensive training systems and operation manuals aimed at safety. However, the relevant employees had not been properly trained to prevent the environmental harm. Mobil had subsequently reimbursed and compensated the nearby factory operators and employees, upgraded the injection system and trained its employees. It fully co-operated with the EPA. The Court convicted and fined Mobil $24,000.00.

This case shows the extent of the obligations placed on companies undertaking potentially polluting activities. Mobil's training systems and co-operation with the EPA clearly helped reduce the penalty from the possible maximum of $120,000.00.

After a long wait, it appears that the State Government will release a draft Bill to amend the Environment Protection Act. The Bill, which is expected to address contaminated land, will hopefully be available to the public in the later part of this year.

Meanwhile the National Environment Protection Council ("NEPC") has progressed with the draft National Environment Protection measure on the assessment of site contamination. Comments on this large document are invited until 18 June. It is available on the NEPC website.

Lastly, the Full Federal Court has dismissed an appeal by a New South Wales Council against a finding that it was negligent in approving the development of a contaminated site. The case confirms the need for councils to carefully assess applications on contaminated or potentially contaminated sites.

Norman Waterhouse recently undertook a review of the management practices and legislation relating to vegetation management in WA, Queensland, NSW and Victoria. The review, for the South Australian Office of Energy Policy, involved an analysis of vegetation management legislation in those four states. Representatives from state government departments, electricity distribution companies and local government were interviewed about their vegetation management practices.

The review revealed some interesting approaches not only to the management of vegetation around powerlines, but also to the management of street trees generally. It also provides a useful background to the development in South Australia of vegetation clearance agreements between distributors (such as ETSA) and Councils. These agreements are intended to allow Councils to undertake the vegetation clearance duties of the distributors. They are most likely to be used where the prescribed minimum clearance standards are not considered appropriate by Councils for environmental, visual amenity or heritage reasons.

The draft vegetation clearance agreement prepared by Norman Waterhouse for the LGA and ETSA provides a useful draft framework for negotiating these agreements. Councils considering entering into such an agreement should seek advice, bearing in mind that the LGA's draft agreement is a starting point only.

We are pleased to announce 3 new appointments. Sean Keenihan and James Levinson have been promoted to Senior Associate. Sean practices in our General Commercial and Asian Business areas and can be contacted on (61 8) 8210 1231 or via E-mail: skeenihan@normans.com.au. James is an Environmental and Town Planning law specialist in the Government Services section and can be contacted on (61 8) 8210 1212 or via E-mail: jlevinson@normans.com.au.

Rosey Batt has joined the firm as a Partner in the Commercial section. Previously in sole practice, Rosey is highly qualified in the areas of commercial transactions, aviation law, international business and intellectual property and is an impressive addition to the firm. Rosey can be contacted on (61 8) 8210 1268 and via E-mail: rosey.batt@normans.com.au.

The annual Norman Waterhouse Residential Seminar will be held on 27 and 28 August at Wirrina. Papers will be presented on a variety of topics including recent planning decisions, valid planning and environmental conditions and the Disability Discrimination Act.

If you are interested in attending, contact Natasha Smith on (61 8) 8210 1241.

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