4nature Inc v Centennial Springvale Pty Limited and Others
In August 2017, the NSW Court of Appeal found in favour of our client 4nature in its landmark legal action to protect Sydney’s drinking water catchment from the impacts of Springvale coal mine. However, changes to the law have since retrospectively validated the approval of the mine.
Springvale coal 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 operations that allowed the mine to discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment.
The PAC’s approval allowed Centennial Coal to extract 4.5 million tonnes of coal from the Springvale mine every year for a further 13 years. Millions of litres of highly saline mine water was permitted to be discharged every day 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.
Following the PAC approval, on behalf of 4nature Inc, EDO NSW launched landmark legal action against the owners of the mine (Centennial Springvale Pty Limited and Springvale SK Kores Pty Limited) and the Minister for Planning in the NSW Land and Environment Court. The case argued that the approval was unlawful because the PAC could not be satisfied the development would 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, 4nature appealed that decision in the Court of Appeal. The challenge was successful, with the Court overturning the Land and Environment Court’s decision and determining that the PAC’s approval was in fact unlawful.
A further hearing was set to take place in October 2017 to determine what orders should be made following the Court of Appeal’s finding that the consent was unlawfully granted. On behalf of 4nature, we filed five expert reports and affidavit evidence addressing the environmental impacts of the continued operation of the mine and the financial and economic implications of mine closure, including in relation to the energy market.
However, the week before the hearing was due to take place the NSW Parliament passed a Bill which retrospectively validated the PAC's approval of the mine. The Bill also altered the laws on protection of Sydney’s drinking water to allow projects like the Springvale mine to be assessed against current pollution levels (as opposed to the test set out by the Court of Appeal, which required such applications to be assessed against water quality that would occur should the project not be approved). The law in relation to completely new project applications has not changed and the test set out by the Court of Appeal for water quality will continue to apply to such applications.
This was the first case to test laws passed in 2009 that were introduced to protect Sydney’s drinking water catchment. Under those laws, a development cannot be approved unless the consent authority is satisfied that the development will have a ‘neutral or beneficial’ effect on water quality. Since the changes made by Parliament in October 2017, that test will be applied differently for applications for continuation of existing projects than for completely new development applications in the catchment.
EDO NSW is grateful to barristers Richard Lancaster SC and Nicholas Kelly for their assistance in this matter.
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