The limits of adaptive management

Last week the Land and Environment Court applied the precautionary principle and refused a mining project that provided insufficient information in its environmental assessment about the impacts of the mine on groundwater and surface water. The case sets an important benchmark in environmental decision making that can now be applied to all planning decisions.

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The case
In SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Ltd [2013] NSWLEC 1031, Commissioner O’Neill and Acting Commissioner Adam refused the continued operation of the Berrima Colliery. The expansion application sought to double the output from the Berrima Colliery to 440,000 tonnes per year and allow continued operation for eight years. Southern Highlands Coal Action Group (SHCAG) argued that Boral did not adequately consider the impact the project would have on the local groundwater resources, groundwater biodiversity, and the Wingecarribee River in preparing its environmental assessment, and that the impacts of the project on groundwater, groundwater ecologies, and surface water pollution are inconsistent with the principles of Ecologically Sustainable Development, the Wingecarribee Local Environmental Plan, and State Environmental Planning Policy (Sydney Drinking Water Catchment).

The consequences
As a result of the decision Boral will not be able to continue the operations until they submit and have approved a further Environmental Assessment. While this will have a significant impact on their operations, it emphasises the importance of ensuring detailed environmental assessments and baseline monitoring are completed prior to seeking approval for a mining project.

The precedent
The Court stressed that the preparation of a management plan as a condition of consent is not a panacea to overcome the necessity to consider all of the environmental impacts of a proposal. In this case there was an absence of monitoring data to calibrate and confirm Boral’s assumptions and therefore the Planning Assessment Commission had not considered all of the impacts and the means of controlling them. The Court was therefore satisfied that the precautionary principle is activated and that the Boral had not established that its activities would not cause harm to the environment. The Court also found that they could not determine appropriate conditions to address these impacts as there was not adequate information before them to allow for the imposition of clear limits in the approval that can be adaptively managed to ensure they are met. Adaptive management requires precise limits on the cumulative operations of the colliery which the evidence showed did not exist in the Water Management Plan.

Importantly the Court also found it was required to assess not only the new impacts but the continued impacts of dewatering over the whole mine workings. This was important here as some of the impacts related to the previous mining activities, and the mine had argued that only the new impacts should be considered.

The Court also found the residents had valid concerns about noise dust and safety impacts on the Medway Road through Medway village. They found the road was unsuitable for 132 truck movements per day and the haulage road needed to avoid the village.

EDO NSW perspective
The Court has not in recent years applied the precautionary principle to refuse a mining operation. The case is important in strengthening the environmental standards that apply to environmental assessment. It has also set limits on the use of adaptive management, so that it cannot be used to overcome the deficiencies in Environmental Assessments. This will ensure that the onus is on companies to show through baseline monitoring and other assessments that their project is not likely to cause environmental harm.

Our conclusion
The case will be useful for all communities affected by mining and will provide guidance to people making submissions on environmental assessments.

*Kirsty Ruddock is the Principal Solicitor at EDO NSW