Hunter Environment Lobby Inc v Minister for Planning and Ulan Coal Mines Ltd

November 2011

EDO NSW acted for the Hunter Environment Lobby in a merits appeal that challenged the Minister for Planning's approval of a proposed expansion Ulan coal mine’s underground mining operations and new open cut mining operation.

On 24 November 2012 the Court handed down judgment in Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221. The Court held that approval should in principle be granted to Ulan’s project, subject to further submissions from the parties in order to finalise the conditions in relation to groundwater, biodiversity offsets and the offsetting of Ulan’s scope 1 greenhouse gas (GHG) emissions.

The groundwater and biodiversity offset conditions were finalised during further proceedings in February 2012. The Court, following its decision in December that a biodiversity corridor to increase connectivity between two distinct biodiversity offset areas was appropriate, finalised the area of that corridor and commensurate conditions.

Regarding the GHG condition, Hunter Environment Lobby argued that the Ulan mine should be required to offset its scope 1 GHG emissions to the extent that they are not required to pay a carbon price for those emissions under the Clean Energy Act 2011 (Cth).

In a judgment handed down on 13 March 2012, Hunter Environment Lobby Inc v Minister for Planning (No 2) [2012] NSWLEC 40, the Court declined to impose the GHG condition because it found that the Clean Energy Act 2011 and related legislation would cover most of the mine’s activities which result in scope 1 emissions and therefore the purpose of the condition would be met by the legislation. The Court also found that the extent to which the Clean Energy Act 2011 would not cover all of the mine’s scope 1 emissions was negligible and therefore the proposed condition was unnecessary. Finally, the Court found that there is an unsatisfactory level of uncertainty in relation to the offsets market sought to be utilised under the condition.

This was a landmark case in that the condition sought was the first of its kind to be considered by the Court. The Court’s original judgment in December, in which it expressed an intention to impose the GHG condition pending consideration of the implication of the Clean Energy legislation, sets a precedent which may prove useful in other contexts.

EDO NSW would like to acknowledge Philip Clay, SC for his advocacy in these proceedings.

On 8 May 2012, the Land and Environment Court handed down its judgment on the question of costs in the Ulan case. The Court rejected Ulan Coal Mines Ltd's application for costs incurred in relation to the GHG emissions issue, and also ordered that Ulan pay the Applicant's costs of the costs hearing. This is a strong judgment in favour of public interest litigation.

EDO NSW would like to congratulate and thank Mark Seymour, counsel, who appeared for the Hunter Environment Lobby.

Applicant's Statement of Facts and Contentions

Judgment - Order on costs 

Case Summary Judgment Appeal