Hunter Environment Lobby v Minister for Planning & Ashton Coal Operations Limited

August 2014

Update: In November 2015 the NSW Court of Appeal dismissed Ashton Coal’s appeal of the decision in this case. Read about the appeal.

The Hunter Environment Lobby, represented by EDO NSW, appealed the NSW Planning Assessment Commission (PAC)’s 2012 approval of Ashton Coal’s expansion of its open cut coal mine next to the village of Camberwell in the Hunter Valley. The PAC had previously refused the expansion in December 2011, finding that it would have unacceptable impacts on human health due to air pollution, and on water resources, including Glennies Creek and the Hunter River. The refusal was based on submissions from the NSW Department of Health (including a report by the CSIRO) detailing regular breaches of air quality standards at Camberwell, and the NSW Office of Water, both opposing the project. However, the PAC’s 2011 refusal was reversed after the submission of a new report on health and water impacts by the NSW Department of Planning, and the PAC granted approval for the expansion to proceed in 2012.

The Land and Environment Court heard the Hunter Environment Lobby’s appeal in September 2013. The group was concerned about the impacts of the mine expansion on the health of nearby residents as a result of dust emissions (PM10 and PM2.5), loss of Aboriginal cultural heritage, reduced agricultural productivity, threats to key water resources and the economic justification for the project. The case was heard in Sydney, but the Court also attended a site visit in Camberwell, followed by the hearing of objector evidence. The Court also heard expert evidence from hydrologists, economists, air quality experts and archaeologists.

The Court determined that the approval could be granted for the expansion but that it must be subject to adequate conditions. Importantly, the Court determined that no development could be commenced by Ashton Coal until it has acquired “Rosedale”, a property which is located in the proposed mine pit, from its owner Mrs Wendy Bowman. This is because the project had been assessed on the basis that the Mrs Bowman would not be living there during the life of the project given the severe impacts from the mine on the residence. The Court also imposed a compensation condition for two neighbouring rural properties heavily impacted by the mine, including a dairy farm which has been in the same family since the 1830’s, one of the oldest farming families remaining in the Upper Hunter.

The Court also imposed strengthened conditions relating to the management of impacts to biodiversity, blasting conditions and land acquisition. With regards to dust, the Court declined to impose any specific criteria for fine particulate matter (PM2.5) given that current air quality standards for PM2.5 are only advisory. However the Court did strengthen conditions relating to the public’s ability to access information on air quality monitoring undertaken by Ashton.

EDO NSW is grateful to barristers Robert White and Corrina Novak who acted as Counsel for the Hunter Environment Lobby.

Judgment - compensation condition

Judgment - conditions of consent

Orders and conditions of consent

Judgment