Barrington-Gloucester-Stroud Preservation Alliance Incorporated v Planning Assessment Commission and AGL Upstream Infrastructure Investments Pty Limited

August 2012

Update: On 4 February 2016, AGL announced that it will not proceed with the Gloucester Gas Project.

EDO NSW, on behalf of Barrington-Gloucester-Stroud Preservation Alliance Inc. commenced judicial review proceedings against two decisions of the Planning Assessment Commission (PAC) to approve parts of the Gloucester Gas Project.

The Gloucester Gas Project involves 110 coal seam gas wells within a 210km area between Barrington and Great Lakes, transporting the gas from the processing facility to the existing gas supply network via a 95-100 km pipeline traversing several local government areas, and a gas delivery station at Hexham. The Alliance is concerned about the risks of surface and groundwater contamination and the lack of data about groundwater impacts.

The key issue raised by the Alliance in the hearing before the Land and Environment Court was that the PAC failed to properly apply the precautionary principle in approving the development on the basis of only preliminary groundwater investigations, and that certain conditions imposed in relation to groundwater and wastewater left open the possibility of a significantly different development from that for which approval was sought and were therefore uncertain. Justice Pepper dismissed the claim, stating that the conditions imposed in relation to the project were within the permissible limits of Part 3A, were not uncertain with respect to impacts, and that the precautionary principle was adequately considered by the PAC in granting the project approval.

In relation to ecologically sustainable development (ESD) the Court held that, although there is no direct reference to ESD principles contained within s 7 of the Environmental Planning and Assessment Act 1979, the Minister is nevertheless charged with the responsibility of promoting development for the purpose of carrying out the objects of the Act, one of which is ESD. However, the Court concluded that the (decision maker) was obliged to consider ESD principles only “at a high level of generality”, no particular method of analysis or the outcome that should result from this consideration is mandated, and consideration of ESD principles does not require specific reference to the particular principles comprising ESD.

EDO NSW acknowledges and thanks Richard Lancaster SC and Nick Eastman for their advocacy and advice in this matter.

See our more recent case relating to AGL's CSG activities in Gloucester: Watts v Department of Planning and Environment

Points of Claim Judgment