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Business-Managed Democracy »Environment » SLAPPs » Australian Examples » Helensburgh |
In 1986 the Helensburgh District Protection Society was formed after Wollongong City Council proposed that the town of Helensburgh, on the southern edge of Sydney, be dramatically expanded. Members of the Protection Society, believed such development 
would be environmentally damaging. The Donohoes and Tim Tapsell (pictured) were active members of the society, Tim Tapsell acting as spokesperson on several occasions and Jenny Donohoe as secretary. The Protection Society opposed a number of development proposals in the following years including a Wollongong City Council plan in 1990 to rezone land in the green belt between Sydney and Wollongong, adjoining the Royal National Park as residential land. There were 5103 submissions in response to the plan, the vast majority opposing the urban expansion, and as a result the Council dropped the plan in 1991. The following year the Council put a new plan on public display which included the rezoning of much of the land as "environmental protection". Public submissions were invited on the plan.
In all their activities the Protection Society was careful not to name individual persons or companies so as to avoid defamation suits and so the Donohoes and Tapsell were shocked to be served with a writ in 1993. According to the writ against them, they had 
forwarded letters to the council promoting rezoning; printed and arranged for about 1085 people to sign copies of letters promoting the rezoning which they delivered to council; and written articles in favour of the rezoning which were subsequently published. The developers argued that the effect of this rezoning (for environmental protection) would be to prevent them from developing their land and that “the defendants were aware of that effect and sought to achieve that effect”. They therefore sought to claim damages from the defendants for those losses. The developers also claimed that the published articles were inaccurate and misleading because, amongst other things, the articles claimed that environmental damage will result from residential development in the area.
The defendants claimed that far from conspiring to deprive the developers of their profits they were responding to a request by Wollongong City Council for the public to make submissions on the Local Environment Plan. In fact the successful operation of the NSW Environmental Planning and Assessment Act depends on public submissions. The defendants argued that their submissions supported rezoning for environmental reasons; they wanted to prevent pollution of the Hacking River, prevent proliferation of urban sprawl, protect natural and native flora and fauna in the area and preserve the natural buffer between Wollongong and Sydney.
Aided by the efforts of the Helensburgh District Protection Society, Wollongong City Council received over 7000 submissions this time with over 5000 of them supporting the rezoning for environmental protection. The Council decided to go ahead with the rezoning but was forced by the Minister for Planning, who had been lobbied by the developers, to hold a Commission of inquiry.
Shortly before the inquiry, the Donohoes were threatened with further legal action for lobbying to have the inquiry cancelled. At the opening of the inquiry Jenny Donohoe told the Commissioner that her submission could be jeopardised because of the legal action against her. Consequently the Commissioner was concerned that the legal action might jeopardise the inquiry itself. As a result the developers made an undertaking not to further prosecute the existing Supreme Court case till the conclusion of the Inquiry and not to pursue any action as a result of statements made at the inquiry. Nevertheless the Donohoes' lawyers warned them that such an undertaking had no legal force and the Donohoes' ability to participate in the inquiry was severely hampered because of the forthcoming case. According to Jenny Donohoe others were also affected when they heard of the writ and removed their submissions from the inquiry.
At the end of 1994 the Commissioner recommended that more than three quarters of the land be zoned for "environmental protection" and the remaining lands be subject to further studies before it is zoned. Most recently the newly elected State Government was reported as banning large-scale residential development at Helensburgh at least till the results of a three year study into Sydney's air quality has been completed. But the writ still hangs above the heads of the Donohoes and Tapsell. The developers show no sign of bringing it to court and it remains in limbo, able to be activated whenever the developers feel it might be useful.
The writ has already cost the defendants thousands of dollars, even though the case has yet to come to court and the developers are unlikely to win if it does. It has also taken its toll in stress and sickness within the families involved. For Jenny Donohoe there is no doubt that SLAPPs do work to intimidate community minded citizens and to victimise key individuals so that their voice is not heard. She points out that, for a relatively small amount of money, “anyone can put up a statement of claims against you” whether or not they have any evidence to support their case. What is more it doesn’t take much for a public statement to be defamatory but the defences which are available to a defendant, for example that the statement is fair comment and made in good faith, have to be established in court. This means that it is unlikely that a writ can be summarily dismissed by the courts in Australia without a full hearing.
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