Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc

April 2013

In 2013, EDO NSW represented the Bulga Milbrodale Progress Association in its appeal of an approval to extend to an open cut coal mine operated by Warkworth Mining Ltd (owned by Rio Tinto). The project would have extended the life of the mine for 10 more years (until 2031), allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village.

Controversially, the approval also allowed the open cut mining of part of a biodiversity offset that was required to be protected as a condition of the existing approval given in 2003. As well as providing habitat for threatened plants and animals, the offset area acts as a buffer between the village of Bulga and the mine. The offset area is ecologically significant, as it contains a unique and endangered ecological community, Warkworth Sands Woodland, and is home to threatened squirrel glider and speckled warbler. This Warkworth Sands Woodland is unique to the area and only 13 per cent of the original forest remains.

The Association also argued that the social impacts of the extension on Bulga residents would be unacceptable, particularly as a result of increased noise and dust. The Association also presented expert evidence about the economic impacts of the project. This was the first time that environmental economics had been presented before the court in deciding a mining project.

The Association sought refusal of the mine extension on the basis that the mining of the biodiversity offset is contrary to the public interest and ecologically sustainable development, and that the expansion will result in detrimental economic and social impacts on the Bulga community that are contrary to the principles of ecologically sustainable development.

The Land and Environment Court upheld the Association’s appeal and disapproved the project application. The Court concluded that the project would have significant and unacceptable impacts on biodiversity, as well as unacceptable noise and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the extension project should not go ahead.

Mining company appeal

Shortly after the Land and Environment Court’s disapproval of the project, Warkworth appealed to the NSW Court of Appeal, arguing that the Land and Environment Court had made legal errors in disapproving the project. The Court of Appeal unanimously dismissed Warkworth’s appeal, finding no fault with the Land and Environment Court’s decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species. The Court dismissed Warkworth’s appeal and ordered Warkworth to pay the Association’s costs.

EDO NSW is very grateful to Senior Counsel John Robson and Counsel Robert White for their advice and advocacy in the appeal, and to Counsel Robert White for his advice and advocacy in the matter at first hearing.

New application for the mine extension

In 2015, Warkworth lodged a new, very similar, application for an extension to the mine. The Planning Assessment Commission held a number of public hearings into the application, which means that the community’s appeal rights to have the Land and Environment Court rehear the case were extinguished. The PAC approved the new application in 2015.

EDO NSW continues to assist the Bulga Milbrodale Progress Association Inc in its tireless efforts to seek environmental and social justice.

We also acted for the Hunter Environment Lobby in separate proceedings to gain access to documents relating to the new application.

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Judgment Appeal