Protections for water too fluid?

The fluidity of legal protections for Sydney’s drinking water has been exposed by a proposal to modify a consent condition that limits the impact of Centennial Coal’s Springvale coal mine on water quality in Sydney’s drinking water catchment.

By EDO NSW Outreach Director - Community Programs, Jemilah Hallinan

22 February 2017

In 2015, the Planning Assessment Commission (PAC) granted consent for the Springvale mine extension project. Centennial Coal was granted approval to extend its underground operations near Lithgow by 13 years. The mine will extract 4.5 million tonnes of coal per year and discharge millions of litres of highly saline mine water every day into the Coxs River, which flows into Lake Burragorang, Sydney’s major drinking water reservoir.

Because of its location within the Sydney drinking water catchment, the mine was subject to the provisions of State Environmental Planning Policy – Sydney Drinking Water Catchment 2011 (Catchment SEPP), which prohibits the granting of development consent unless the consent authority is satisfied that the proposed development will have a neutral or beneficial effect on water quality.

The mine extension is approved – with conditions

The PAC included a number of conditions as part of its 2015 approval to extend the mine’s life, several of which related to water quality. One condition requires the mine to undertake a staged reduction of the salinity and toxicity of mine discharge water to meet certain limits. The mine was to achieve the first set limit by June 2017 and the final set limit by June 2019. Documents from the environmental assessment publicly available on the Department of Planning’s website show that the mine actively agreed to this condition; it was not unilaterally imposed on it.

Community group 4nature Inc, represented by EDO NSW, challenged the PAC’s approval. 4nature argued that there was no evidence that the PAC was satisfied the project would have a neutral or beneficial effect on water quality in the catchment – and that it would be very difficult to be satisfied of this given the volumes of mine water to be discharged into the river system each day.

The NSW Land and Environment Court did not agree with 4nature’s argument. The Court found that the PAC had satisfied itself as to whether the project would have a neutral or beneficial effect on water quality, and that this was evidenced through the conditions relating to water quality.

The mine seeks to modify the conditions

Now, less than six months from the deadline for reducing its pollutant concentrations, the mine is seeking to modify the consent to remove the interim (June 2017) water quality conditions relating to salinity, and is also seeking to defer for two years (June 2019) the requirement to eliminate acute and chronic toxicity of the discharges.

The ability to modify a project, including its conditions, is a contentious aspect of our planning laws.

On the one hand, modifications provide an important element of flexibility by allowing developments to be adjusted over time as circumstances change. But modifications can allow developers to gradually weaken important constraints on a development, in a ‘death by a thousand cuts’ manner. The law seeks to avoid such gradual weakening by requiring a development, as modified, to be essentially the same development as was originally approved. But what happens if the development itself is unchanged, but the important conditions designed to protect the environment and public health are removed?

Had Centennial Coal sought development consent for the project as it is now proposed, it would arguably have been refused by the PAC for failing to comply with the Catchment SEPP. 

An important test

The PAC is yet to make a determination on the modification application, but the outcome will be an important test of the efficacy of the Catchment SEPP. The conditions relating to water quality were fundamental to the mine being approved by the PAC and, according to the Court, to allowing the PAC to satisfy the requirements of the Catchment SEPP.

Conditions are placed on projects for very good reasons; in this case, to protect the quality of Sydney’s drinking water. It is important that these protections are not sidestepped or undermined by modifications to consent conditions, especially when the PAC approved the project on the understanding that the condition would protect water quality in the catchment.

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