1. Smoke taint 1.1 Southern Properties (WA) Pty Ltd v Ex. Dir Dept of Conservation  and Land Management WASC 2010  Manjimup/Pemberton Warren Region   926,000 ha State Forest  80 years of prescribed burns  1961 Dwellingup fires – Royal Commission 1.2 Fire risk  Sources – humans 90%, lightning 10%  Fuels – vegetation, dry matter, tree type  Weather – summer drought, prevailing winds 1.3 Management  Government policy 200,000 ha/year to be burnt  Fallen behind in 2003 and backlog of 452,000 ha  Limited opportunities Karri Forest burning 1.4 Experience up to 2001  No reports of smoke/ash affecting vineyards/wine to Department of Environment and  Conservation (D.E.C.) pre 2001  2001 fires near Barwick vineyards  Resultant wines rejected August 2001 1.5 Studies  AWRI Report 2003  Studies 2007, 2008 confirmed that smoke can contaminate vines and berries 1.6 2004 fire  Notification by D.E.C. of burn to take place on 31 March (favourable conditions)  Edge burn 31 March  Core burn 1 April  Winds changed4  Smoke covered the vineyard for 7 days   Ash for 3 days 1.7 2006 injunction proceedings  Notification by D.E.C. of a further burn to take place in February 2006  Injunction sought and rejected:  Damages adequate remedy  Public interest 1.8 2005 proceedings  Damages (quantum agreed)  Injunction to restrain lighting fires until after harvest each year  Causation not disputed 1.9 2009: the hearing Plaintiff’s case:  Duty of care not to harm Plaintiff’s vineyards  Heightened due to the dangerous nature of the activity 1.10 Decision in 2005 proceedings Justice Murphy:  The fire was not the product of negligence  Strategy/policy sanctioned by legislation  No common law duty owed by Defendant to Plaintiff  Defendant did have regard to Plaintiff’s grapes in its planning  Defendant had no duty of care to avoid smoke taint  A reasonable person in the position of the Defendant would not have deferred the burn 2. Spray drift 2.1 Landsdale Pty Ltd v Moore WASC AC 2009  Defendant a vineyard operator  Plaintiff farms marron (freshwater crustaceans)5  Plaintiff alleges that in the periods December 2002 to March 2003 and October 2004 to March  2005 escape of chemicals sprayed on the vineyard caused marron deaths on its property  Plaintiff claims breach of Defendant’s duty of care to prevent chemical sprays escaping causes  losses of $8m  Defendant denies negligence and maintains that spraying has been done in accordance with  guidelines, by a skilled operator.  Did not admit that winds carried spray and says that even if it  did the amount that drifted would not cause the damage alleged  Interlocutory Procedural issue before the Court – order that a single trial be held on questions of  liability and damages 3. Eucalyptus taint  Great Southern Plantations  Complaint by Yanmah Ridge Winery  Application for development approval for a timber plantation before the Manjimup Shire Council  Studies tabled concluded:  Eucalyptus taint in grapes is associated with nearby eucalyptus trees – remove the trees and  the taint disappears  Bluegums (Eucalyptus Globalus) emit the strongest eucalyptus characters  Contamination is from airborne oil transfer and leaf fragments caught in grape clusters  Application refused:  existing vineyards/intensive agriculture takes precedence to a timber  plantation 4. Yeast drifts  Development Application for a proposed microbrewery adjacent to the cellar door of Cullens  Winery in Willyabrup, Caves Road, Margaret River  Cullens Chardonnay recently judged “World’s Best Chardonnay” at the Decanter International  Wine Awards  Brewery to be sited within 60 metres of the boundary of the Cullens property  Cullens utilises biodynamics in the vineyard and wild yeasts in winemaking  Manufactured yeasts decrease risks in winemaking  Cullens argues against the DA that:  Yeast cells from the brewery will escape and contaminate the wild yeasts in the vineyard  Wild yeasts from a biodynamic vineyard result in wines that are in touch with terroir  Escaped yeast cells will alter the flavour profile of wines and therefore the Cullens Brand6  AWRI Report commissioned for the matter (not publicly available):  Brewery yeasts will migrate to the adjoining property  Contaminating yeasts will likely alter the course of fermentation (stuck ferments) 5. Frost control fans 5.1 Sumar Produce v Griffith City Council Land and Environment  Court of NSW 2000  Citrus orchard  Fan comprising a 10m mast 2 blades @ 590 RPM – the sound of a helicopter   Local area used for horticulture, but a rural lifestyle development has taken place in recent years  and more is likely  Applicant lodged a DA for the fan but proceeded without DA after legal advice that a DA not  needed  Complaints made and a Notice of “intrusive and offensive noise” issued  Decision:   allowed so long as noise limited (55 d BAL)  the land was within the “Rural General Zone” where agriculture is development that can be  carried out without development consent 6. Planning 6.1 Nurmi v WAPC 2006  Subdivision of a 2.48 ha lot in the Swan Valley into 2 lots was rejected:  It would create an undesirable precedent   Contrary to Government objectives to conserve and enhance the Swan Valley’s unique  resources 6.2 Town planning scheme 9  Purpose and intent “to promote the Swan Valley as a horticultural, recreational tourism and  landscape resource” 6.3 Swan Valley Planning Act Objectives:  Protection of viticulture/horticulture and to discourage inconsistent uses  Tourism7  Encourage traditional activities of the Swan Valley and industries associated with viticulture  horticulture and cottage industry  Allow subdivision into lots of <4 ha only when consistent with these objectives  Decision closely followed in several subsequent State Administrative Tribunal decisions 7. Pivot Group v Shire of Busselton 2007 7.1 Sculpture: “Free As A Bird”  Rising from the dam  17metre steel beam (angle of 60°) supporting a 3 m high female figure  Blue beam  Figure gilded in 23 carat gold  Vertical height 17.5 m  9 m above the high water mark  Water feature below and lighting  Application to SAT for retrospective planning consent  Principal issue – the visual impact of the structure on Caves Road and whether it is inconsistent  with the established planning framework  Land zoned viticultural and tourism  Shire policies – “maintain enhance and protect the natural and rural landscape, cultural and  tourist values of Caves Road and environs”  Held:  the structure was compatible with the rural character of the locality8 8. Mining in wine regions 8.1 Conservation Council joins fight against Margaret River coal mine By TREVOR PADDENBURG  From: The Sunday Times August 03, 2010  OPPOSITION to plans to open a coal mine in Margaret River is mounting, with the WA  Conservation Council saying the operation would be at odds with everything that makes the  region a world class tourist destination.  Adding to mounting opposition to the plan, Conservation Council Director Piers Verstegen said the  mine would be pose a major threat to the pristine Margaret River environment. "Margaret River is a world class winery, tourism and surfing drawcard and in the past few months we  have seen oil rigs proposed for the coastline and now a coalmine proposed for the backyard of this  iconic region,” he said. “Heavy industrial operations like oil drilling and coal mining are totally incompatible with everything  that makes the Margaret River region Western Australia’s favourite holiday destination. “A coal mine next to Margaret River would have a range of serious environmental impacts including  air pollution that is damaging to human health and the viticulture industry that the region is so famous  for. “In addition, it is difficult to see how coal could be mined in this sensitive area without major impacts to  the regions precious groundwater supplied by the Yarragadee aquifer. “This proposal comes a matter of weeks after the Barnett Government announced a massive coal  expansion with three new coal fire power stations and the refurbishment of two old polluting dinosaurs  from forty years ago.9 “Western Australia’s carbon pollution is already projected to increase by 75%, and further coal mining  would increase that even more. “Given the vulnerability of Australia’s Southwest to a drying climate, there is no case to support coal  mining in the area, which would only add to the climate change problem. “Instead, Margaret River should invest in clean, renewable energy technology that can support and  enhance its international image as a first class environmental tourism destination.” The Conservation Council joins tourism authorities, residents, community groups and the Margaret  River Wine Industry Association in expressing grave concerns about the project. The growing backlash against the mine comes as Margaret River battles Federal Government  approval for offshore petroleum exploration in the Mentelle Basin, less than 100km from the region's  pristine beaches. The proposed underground coal mine, known as the Vasse Coal Project, is just 15km from the heart  of the wine and tourism town. Augusta-Margaret River deputy shire president Jenny McGregor confirmed that councillors had been  briefed by New South Wales-based miner LD Operations about a plan to extract coal from what is  known as the Leederville aquifer. A State Government spokesman confirmed LD Operations was applying for planning and  environmental approvals. The "significant" ore body would create an estimated 200 direct jobs over the next 20 years, the  spokesman said. LD Operations confirmed it was speaking to the Department of State Development over the proposal  and community consultation was due to start soon. Meanwhile, the bidding process continues for a 13,000sq km swath of ocean earmarked for petroleum  exploration off Margaret River. 8.2 Margaret River region under threat from mine plan By NICOLAS PERPITCH  From: The Australian September 03, 2010  AN underground coalmine planned for Western Australia's world-class wine region of  Margaret River has infuriated and mobilised locals.  The backlash has been so strong it has forced Premier Colin Barnett to hint that the state government  may oppose the controversial project. But that has not stopped celebrity chef and local property owner Ian Parmenter and others rallying  against the Vasse project, earmarked for development just 15km east of the township. The project is 70 per cent funded by American Metals and Coal International, headed by US mining  billionaire Hans Mende, who also has major interests in coal projects in NSW and South Australia.  The remaining 30 per cent stake is held by Perth-based Core Coal, whose sole director is local  businessman Norm Taylor. Winemakers and dairy farmers are worried the mine will contaminate streams that feed the Margaret  River and Leederville Aquifer, which sit above the coal deposit, and believe their produce and  livestock could be affected by dust.10 Mr Barnett has said the project will face tougher environmental assessments because of Margaret  River's high-value tourism and agricultural industries. But Parmenter, co-convener of resident group NO COALition, said: "It has to be stopped now. It can't  be stopped at the end of a two-year process. In the meantime, the whole region's on hold. "People have contacted me saying, 'We don't know if we should go ahead with our building'. Other  neighbours have said, 'We're trying to sell a property and we've got Buckley's chance with this under  our land'.” Garry Cain is a third-generation dairy farmer whose property is 500m from the mine-site boundary.  "Our concern as a dry land farmer is once they start messing around with the water flow, we'll lose our  water table and our ability to grow grass for feeding cattle," he said. John Standish, viticulturalist at Jane Brook winery, just 1km from the mine site, said no one from the  mine had come to see them or provided information. "Coalmines need to be vented even if they are underground," he said. "The coalmine would be going  underneath this vineyard and our dam. You'd assume there'd be a vent in the area, and if those  chemicals that are vented are taken up by the grapes, that would be a significant threat." But LD Operations general manager Peter Ross said there would be no smokestacks, coal stockpiles  or power stations, and the company would not allow trucks on residential roads. 8.3 Wines, mines and water  The Upper Hunter Winemakers Association press release concerning Anvil Hill mine approval, 17  May 2007  Press Release – Wines, mines and water The Upper Hunter Winemakers Association (UHWA) represents the interests of grape growers and  winemakers of the Upper Hunter Valley.  For some time now the UHWA has opposed the expansion  of mining in the Upper Hunter region of NSW. The Upper Hunter has a long history in the wine  industry and is an important economic contributor to the region. The areas vineyards and wineries  provide significant employment opportunities and the flow on effects of wine tourism create economic,  social and cultural benefits to the region. Continued expansion of mining will directly affect some of  our individual members and it has the potential to seriously impact on the future viability of our  industry in this region. The UHWA has therefore opposed the Anvil Hill coal mine for the following  reasons: 1. Displacement of existing Vineyards. Several existing vineyards have already been purchased  by Centennial Coal and several more are under threat. The wine and tourism industry needs  a critical mass to survive and the removal of some of our more prominent vineyards impacts  on the viability of the industry and the credibility of this area as a serious wine region. There  are also several more vineyards/wineries that are just out of the area of affectation that will  also be impacted. As much as the mining industry would like to believe that mining and wine  tourism can co-exist, that is certainly not the view of the wine tourism industry. 2. Dust created from the mine will impact on surrounding vineyards and local communities.  Recent winds have been a reminder of the weather extremes we can experience in this  region with severe north westerly winds which would no doubt significantly impact on the  Denman community. 3. Water use by a mine the size of Anvil Hill is significant. Hunter River water users are currently  under threat of having their water allocations severely reduced which will make some farms  unviable and cause some farmers to leave the land. It is not acceptable that in this  environment the Government is considering the approval of a coal mine with water use of this  scale. There has been no guarantee that damage will not occur to ground water supplies and  aquifers located within the Wybong Creek catchment area. Of further concern is the 11 expansion of mining activity in the Mudgee/Ulan area which will directly affect water  availability in the Goulburn River, a major contributor to Hunter River flow. 4. The Upper Hunter is already a very large coal producer with a high concentration of coal  mines in the area. We do not believe that the cumulative impacts of building yet another mine  in the area have been fully considered.   The mine is stated to produce 10.5 million tonnes of  coal per year which will further impact on the area’s dust and noise pollution, leading to  further deterioration of the local environment. Large vehicular traffic and rail movements will  also be dramatically increased with an average of almost 30,000 tonnes of coal per day to be  removed from the site. These impacts will also affect the health and wellbeing of the local  communities. In summary, the Upper Hunter Winemakers Association holds significant fears for the viability of the  wine industry in the Upper Hunter region if any further new mines are approved. I am sure many are  aware that our concerns are shared with the thoroughbred horse industry, members of which  tragically feel that they may be forced to leave the Hunter Valley if more new mines are  approved. Our Association wishes to emphasise in the strongest terms our concerns in relation to  water usage and environmental damage that is occurring as a result of the concentration of coal  mining activity in the Upper Hunter region.For more information: Paul Kordic Principal T +61 8 9420 7100 E pkordic@ro.com.au rockwellolivier.com.au We know that close  and effective  (relationships)  matter to you and we  offer services that  draw on our  significant  knowledge and our  experience.