Mining & CSG: 4nature Inc. v Centennial Springvale Pty Ltd & Others

On 2 August 2017, the NSW Court of Appeal found in favour of our client 4nature in its appeal of a NSW Land and Environment Court decision that would allow Springvale’s coal mine to discharge large amounts of mine water into the Coxs River, which forms part of Sydney’s drinking water catchment.

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Image courtesy of David Noble

This judgment follows previous successful cases by EDO NSW clients to protect the Coxs River from water pollution.

Springvale mine, operated by Centennial Coal, lies beneath the Newnes State Forest in the Blue Mountains. In September 2015, the NSW Planning Assessment Commission (PAC) approved an extension to the mine’s operations.

The PAC’s approval allowed Centennial Coal to extract 4.5 million tonnes of coal every year for 13 years, permitting 19 megalitres of highly saline water to be discharged daily into the Coxs River, which flows into Lake Burragorang, Sydney’s major drinking water reservoir.

Water discharged from the mine also contains nitrates, phosphates, zinc, nickel and other contaminants.

On behalf of 4nature, we launched a landmark legal action in the NSW Land and Environment Court, arguing the approval was unlawful because the PAC could not be satisfied the development will have a ‘neutral or beneficial’ effect on water quality in the catchment – a standard introduced by the NSW Government in 2009 specifically to protect Sydney’s drinking water catchment.

The NSW Land and Environment Court found the PAC’s approval was lawful, and that the extension could proceed.  However, on behalf of 4nature, we appealed that decision in the Court of Appeal.

This challenge was successful, with the Court overturning the Land and Environment Court’s decision and declaring that the PAC’s approval was in fact unlawful.

A further hearing will be required to consider the orders appropriate to resolve the proceedings.

The 4nature judgment sets an important precedent as it gives legal guidance to decision makers on how to approach the test of a ‘neutral or beneficial effect on water quality’.

It confirms that actual – not hypothetical – water quality must be used as a baseline. It also requires decision makers to examine what would happen to water quality if the proposed development were refused.

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