Limitations by Environmental Law - Assignment Example

Environmental Law Name: Unit: Course: Supervisor: Date of submission: 1. The highway is proposed to pass through native grasslands [pasture] habitat of the striped legless lizard, a listed threatened species at Commonwealth and ACT levels, and two threatened woodland ecological communities. Community environmental groups are concerned that the habitat and ecological communities will be fragmented, degraded and ultimately destroyed. The stripped legless lizard was declared a vulnerable species in accordance with the Nature Conservation Act of 1980 section 21. Section 23 of the same Act requires the conservationist of Flora and Fauna to prepare an action plan on the protection of the species. The native grassland which borders the proposed freeway is a natural habitat for this endangered species. Being a vulnerable species proper environmental assessment should be carried to quantify the extent to which the road construction will affect this species. A research carried out by Smith and Robertson (1999, p. 451) has pointed to combination of factors that are deemed to directly affect the survival of these lizards. These factors include clearing of grass in the process of urban development; agricultural practices and habitat fragmentation. The proposed road transverses sections of the grassland and borders a large section of the grassland, even though not all the grassland is affected there will be substantial fragmentation of the grassland which will directly affect the legless lizard. The woodland communities are found in the central portion of the proposed freeway and it has been marked as an area which is sensitive as it contains the significant vegetation which acts as a breeding and foraging habitat. This warrants the Grasslands Australia and the Save Majura Valley groups the right to instigate a prosecution. Despite of the right to prosecute by the concerned groups proper mitigation efforts as proposed should be considered before the project commences as this will reduce the effects. It is also understandable that there are already a lot of pollution from the congested Majura road which has harbored the migratory paths of some species and affected their reproduction. 2. The freeway will pass close by the heritage listed Duntroon Wool Shed. The National Trust is concerned that the ambience and amenity of the heritage site will be ruined by the noise, visual impacts and loss of vistas from the site. The Land Planning and Environment Act of 1991 section 54(1) points to the requirements that are needed to maintain the conservation and ensure the significance of the heritage is not interfered with. In relation to the external alterations of the heritage, the act provides for allowing of external alterations and adjustments; however this should satisfy the Heritage Council that the works do not negatively affect the significance of the area. The issue of the noise and vibrations emanating from construction works have been addressed in Environmental Protection Regulation 2005. This gives the directions on the control of noise to areas deemed sensitive. The regulations categorises the Zone Noise Standards depending on the different times of the day, i.e. evening, night and weekend period. This classification is based on the receiver area and the land use zone. The act recognises noise to be harmful if the level of the noise is louder that the standard set noise for the area. The regulation however has exceptions for the harmful noise. The predicted noise from the construction in the receive blocks ranges from 63.9-68.7 dBA. This is way above the recommended levels for the blocks that range from 0.9-2.9 dBA. The concerned conservation groups have right to instigate a litigation based on these exceedingly high noise pollution (ACT, 2010). However under the section 25(1) the noise is not considered to cause environmental harm if it is emitted in the process of minimising or remedying another environmental harm. In the case, the road is supposed to remedy the noise and environmental pollution resulting from the overcrowded road by easing the traffic jams. The visual impacts and loss of vistas can be mitigated through the buffer zones and proposed fence that restrict the area of works. 3. The leaseholder of Block 36, Mr John Cobbin, is very concerned about the exposure of his property to noise during construction and when the freeway is completed and operating. During the construction, the predicted noise level for the receiver block 36 is 68.7 which exceed the 2.2 dBA for compliance. This block is very close to the proposed road which makes Mr. John Cobbin has a genuine concern for the noise pollution and can initiate a litigation process. Considering that the construction of the freeway is aimed at reducing other environmental concern of the noise that is emanating from the congested roads which have led to noise pollution, accidents and injuries, the section 525(1) of the Environmental Protection Act of 2005 recognises the activities for road constructions and hence an exception of the noise is given under the same act if the noise is aimed at remedying another environmental harm. Noise that emanate from construction work is sometimes inevitable. There are measures that are advisable and are described in the Australian AS 2436 that provides guidelines on the control of noise during construction maintenance and the sites of demolition (ACT, 2010). In such instances the noise can exceed but the construction work needs to be carried out in accordance with AS 2436. However there are remedies that can be taken to ensure that the concerns of Mr. Cobbin are addressed which will include a noise control measure. This will entail building treatment to new house that is supposed to be built by either grazing the house or employ façade construction in order to ensure that the internal noise levels are appropriate. In addition, the mitigation measures proposed for construction of the buffer road can work to reduce the noise levels, a small fence can be used to serve as acoustical buffering measure. In addition, the noise issue raised by Mr. Cobbin can be addressed by use of roadside barriers. 4. During the construction phase it is proposed to store 100,000 litres (100 m³) of diesel fuel on the site for use by road building machinery, pumps, electricity generators and so forth. These machines are expected to consume a total of 10,000 litres per day. The storage tanks will be topped up by regular deliveries carried by standard tankers with 35,000 litre capacity. The machineries to be used in the construction are to consume diesel fuel amounting to 100, 000 litres. This diesel is to be stored on the site and the refilling of the diesel is to be undertaken by standard tankers with carrying capacity 35, 000 litres. The environmental challenges resulting from these include vibration and noise from the tankers and the possible danger of spills during the topping up of the fuel. The possible spills cause a major concern to the environment; even though the diesel spills can evaporate the ingestion by the birds which form part of the protected species in the areas could cause mortality of the birds and other species such as the legless lizards (Millar, 2010). The danger of the spills also has direct impact on the grassland and the woodland ecology. This implies that both the fauna and flora are at danger from the storage of the diesel in the area. Grassland Australia, Save Majura and Valley Group and Mr. John Cobbin all have right to initiate a court case to prevent the storage of the diesel in order to avert the possible danger to the environment. The emissions from the tankers are sources of the environmental pollution and on the wake of global warming, the tankers with 35000 litre capacity cause more environmental harm through noise pollution, vibration and emissions. The requirement of diesel per day is 10, 0000 litres thus use of smaller capacity of the tankers will reduce both the sound pollution significantly reduce the air pollution from the fossil fuel burning. Question 5 The concept of ecologically sustainable development is widely embraced. Is it a principle of law? The principle of law refers to a legal precept that is recognised in all legal systems and it is not aligned to a legal system to which it belongs. In the arena of the international law, the principle of law recognises legal obligations that relate to states in ensuring a common agreement on a given concept is adhered to. It is a general principle that developments should meet the contemporary needs without negatively inflicting or compromising the needs of the future generations in regards to the environment (Sands 2003, p.140). The concept of the sustainable development got clear elaboration at 1992 Earth Summit held in Rio de Janeiro. The sustainable development as stated traces its legal roots to the Earth Summit held in Brazil Rio da Janeiro. In this summit different principles were evoked and which todate have informed the ecologically sustainable development. One of the key principles is the principle of integrations that stresses the importance of making considerations that relate to environment in any project before it is undertaken. This principle underpins the importance of ensuring that the objectives of a project integrate the concept of sustainable environmental development (Miller 2010, p.7). This principle becomes weightier when leveraged by the principle 15 of Declaration of Rio, this is the Precautionary Principle which connotes the need for precaution measures to be applied by the states in order to protect the environment. This precautionary principle has been domesticated by Australia and has been used by the Courts of law in making judgements that relate to cases relating to environment. Most of the acts that relate to environmental pollution and conservation in Australia emphasise the need for precaution and prior assessment of the environmental impact before instigating a project. In Australia it has become a legal precept the concept of embracing ecologically sustainable developments. Even though there is no binding law on the ecologically sustainable development, it is viewed as a norm to ensure that ecological sustainability is observed. There have been many enactments that relate to environmental conservation, even though the laws do not have a normative force to compel, they prioritise ecologically sustainable development as a rule of law that need to be adhered as far as possible (Preston, 2006, p.14). The Environmental protection and biodiversity conservation act (EPBC) of 1999 recognises the importance of the biodiversity and ecological integrity as fundamental considerations in the process of decision making on environment. The biological diversity and the ecologically sustainable development include ecosystem diversity, the diversity of species and the genetic diversity. For instance if a project is to be undertaken there is need to consider the environmental effects on the flora and fauna found in the area the project is to be undertaken. It thus becomes an obligation to ensure the diversity is maintained, environmental alterations should be scientifically informed. The Environmental Act of 1994 defines the criteria for environmental conservation and protection of the environment; it thus integrates the criteria of applying EIS before actual implementation of a project is undertaken (Preston, 2006, p.16). These acts denote the importance of the ecologically sustainable development and recognise the sustainable development as a legal precept that should be optimised to ensure integrity of the environment and biological diversity are maintained. In Australia the ecologically sustainable development related legal cases have been heard and determined. For instance, there is a rationale of the polluter pays principle that has been applied in Australian Courts in sentencing offenders who are deemed to have engaged in practices that amount to environmental crime (Preston, 2006, p.19). In a case involving Axer Pty LTD v Environmental Protection Authority.232, Axer Company was found guilty of not adhering to ecologically sustainable development. This was after being involved in the spraying of pesticides on fields of cotton that touched on a nearby river, the spraying caused pollution and death of fish. This case is an example of the consequences that may result due to failure to embrace the ecologically sustainable development and acting without precaution considerations. The case also affirms that the ecologically sustainable development is principle of law. The embracing of the ecologically sustainable development has been widely embraced, true to this has been due to the predicted consequences resulting from environmental degradation. These consequences are grave and as a result, it is has become a legal obligation for everyone to ensure ecologically sustainable developments are embraced as much as possible hence making ecologically sustainable development a principle of law. References ACT. A Vision Splendid of the Grassy Plains Extended: ACT lowland native conservation strategy (ACT Government, 2005a). State Action Plan. ACT. 2010. Legless Lizard species Profile. Biodiversity Species profile and threat database Axer Pty LTD v Environmental Protection Authority.232 Australian Capital Territory. 2010. Noise Environment Protection Policy. Environmental protection Authority Millar, I. 2010. The Environmental Law Framework for Sustainable Development: Principles of Sustainable Development in International, National and Local Laws. Melbourne: Baker & McKenzie, pp. 1-9. Preston, J. B. 2006. Ecologically Sustainable Development in the Courts in Australia and Asia. Wellington, New Zealand, pp. 12-19. Sands, P. 2003. Principles of International Environmental Law. Cambridge University Press, pp. 139-157. Smith, W. and Robertson, P. 1999. National Recovery Plan for Striped Lizard (Delma impar) Read More