4nature Inc v Centennial Springvale Pty Limited and Others

Community group 4nature, represented by EDO NSW, is appealing a NSW Land and Environment Court decision that will allow Springvale coal mine in the Blue Mountains to discharge large amounts of mine water into the river system that forms part of Sydney’s drinking water catchment. The appeal was heard in the Court of Appeal on Wednesday 31 May 2017.

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.

On behalf of 4nature Inc, EDO NSW launched landmark legal action in the NSW Land and Environment Court, arguing that the approval was unlawful because the PAC could not be satisfied the development will 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.

On 13 September 2016 the NSW Land and Environment Court found the PAC’s approval was lawful. 4nature has appealed that decision in the Court of Appeal.

Background

The PAC’s approval allows 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 is 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.

4nature took the owners of the mine (Centennial Springvale Pty Limited and Springvale SK Kores Pty Limited) and the Minister for Planning to the NSW Land and Environment Court in a challenge to the approval.

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.

4nature argued that there was no evidence the PAC was satisfied the project would have a neutral or beneficial effect on water quality, which 4nature contended would be very difficult given the volumes of mine water the mine will discharge into the river system each day. As such, 4nature argued that the PAC’s approval of the project was unlawful.

The case was heard in the NSW Land and Environment Court on 9-10 May 2016. Judgment was handed down on 13 September 2016 dismissing 4nature's case. 4nature's appeal will be heard in the Court of Appeal on Wednesday 31 May 2017.

EDO NSW is grateful to barristers Richard Lancaster SC and Nicholas Kelly for their assistance in this matter.

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Additional information
Centennial Coal is facing a number of legal challenges relating to the water impacts of its coal mining operations in the Blue Mountains. Recently, the NSW Environment Protection Authority (EPA) launched a ‘Tier 1’ prosecution against the company’s Clarence Colliery for an incident that released hundreds of tonnes of coal material into the surrounding environment, with coal slurry entering the Wollangambe River that flows into the Blue Mountains World Heritage Area.

Tier 1 offences are the most serious under the Protection of Environment Operations Act 1997 and come with a maximum penalty of $2m for corporations.

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