Hunter Community Environment Centre Inc v Minister for Planning and Delta Electricity

August 2012

EDO NSW acted for the Hunter Community Environment Centre ('HCEC') in a Class 4 judicial review challenge against the planning approval for the rehabilitation of Munmorah Power Station. HCEC argued that the approval did not comply with the legal process under Part 3A of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) in two respects:

1. The Director-General of the Department of Planning failed to provide the Minister with a statement of compliance with environmental assessment requirements, and as a result, the Minister did not consider a statement of compliance as required by section 75J(2) of the EP&A Act. This is important, because the statement of compliance tells the Minister whether, in the Department’s view, Delta assessed environmental impacts in compliance with the Environmental Assessment Requirements (EARs).

2. Even if it could be said that there was a statement of compliance within the meaning of the Act, it was erroneous and misleading insofar as it advised the Minister that the Environmental Assessment had met the environmental assessment requirements, when in fact Delta had failed to comply with the requirements particularly in relation to waste management (specifically coal ash), and the identification of measures for its management and disposal.

The case was before Justice Pain of the Land and Environment Court on 9-10 May 2012. The Court was required to consider the legality of the decision under the environmental assessment process which was in force at the time that the decision was made, which was Part 3A.

HCEC was unsuccessful on both grounds.

The Court found that at the time of the Minister’s decision under the EP&A Act, as long as the Minister considered the Director-General’s report, including a statement of compliance, the requirements of the EP&A Act would be satisfied. The Court found that a statement of compliance was not required to be a separate document, and that the whole of the Director-General’s report should be considered in determining whether there was in fact a statement of compliance.

The Court also found that the Director-General’s statement of compliance did not mislead the Minister about compliance with the EAR in relation to coal ash disposal, and that the Director-General’s report was not required to alert the Minister that the measures for disposal of coal ash other than conceptual options. This is because the EAR did not require anything more than these conceptual options, and the Department appeared to have considered that disposal of coal ash would be able to be dealt with in the conditions of approval.

The decision highlights the flexible way in which the Court has interpreted Part 3A of the EP & A Act, and the necessity for continued reform of State Significant Development process in order to ensure the planning system obtains the best environmental outcomes.

On July 3 2012 Delta Electricity announced that Munmorah power station will be closed before 2014.

EDO NSW wishes to express its sincere gratitude to barristers Sarah Pritchard and Melissa Perry QC who acted as counsel for the HCEC.

Summons

Points of Claim Judgment