Bulga Milbrodale Progress Association Inc v Warkworth Mining Limited and NSW Minister for Planning
Our client Bulga Milbrodale Progress Association have withdrawn their appeal against the Warkworth coal mine expansion. Read more on our blog »
The case was to be heard in the Land and Environment Court in June 2016. The expansion is very similar to the project that was refused by the Land and Environment Court in 2013 and then that refusal was upheld by the NSW Court of Appeal in 2014.
The community group says that in granting the approval this time, the PAC breached the law by failing to consider what would happen if the Warkworth Sands Woodland, an endangered ecological community becomes extinct as a result of the project. The group also says that both the Office of Environment and Heritage and the PAC failed to apply the NSW Government’s Offsets Policy for Major Projects in accordance with the law.
The approval lets Warkworth extract an additional 230 million tonnes of coal from the mine over the next 21 years, and will bring the mine closer to Bulga village. Controversially, the approval lets Warkworth mine part of a biodiversity offset that the company was originally required to protect as a condition of a former approval from 2003. As well as providing habitat for threatened plants and animals, the offset area acts as a buffer between the village of Bulga and the mine. The offset area is ecologically significant, as it contains a unique and endangered ecological community, Warkworth Sands Woodland, and is home to threatened squirrel glider and speckled warbler. This Warkworth Sands Woodland is unique to the area and only 13 per cent of the original forest remains.
The PAC approved a very similar expansion to the mine in 2012. Bulga Milbrodale Progress Association challenged this approval, and won, with the Land and Environment Court finding that the project would have significant and unacceptable impacts on biodiversity, as well as unacceptable noise and social impacts. The Court considered that the proposed conditions of approval were inadequate and would not allow the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bulga. The Court found that these matters outweighed the substantial economic benefits and positive social impacts of the project on the region, and that the extension project should not go ahead.
When Warkworth appealed the Land and Environment Court’s disapproval of the mine, the community was again victorious.
The expansion project approved by the PAC in 2015 is very similar to the project that both the Land and Environment Court and the Court of Appeal ruled could not go ahead. The community does not have merit appeal rights in the Land and Environment Court this time round as merit appeal rights are extinguished where a public hearing about the project is held. There were two public hearings held into the project.
We are grateful to barristers Geoffrey Kennett SC and Robert White for their assistance in this matter.
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Image: John Krey