Mining & Coal Seam Gas
EDO NSW has assisted rural and regional communities, in their efforts to protect native plants and animals, agricultural land, water resources and the broader environment from mining and coal seam gas developments which breach environmental laws and regulations.
People for the Plains v Santos and Others
People for the Plains, represented by EDO NSW, sought an injunction in the NSW Land and Environment Court to prevent Santos from developing its 'Leewood' coal seam gas (CSG) wastewater treatment facility without first undertaking the proper planning and environmental assessment. The facility is located near the Pilliga State Forest, near Narrabri in North-West NSW.
On 1 August 2016, the Land and Environment Court determined that the Leewood facility's approval was valid. Our client appealed this decision in the NSW Court of Appeal. In a decision on Tuesday 14 March 2017, the Appeal Court upheld the original decision.
The Leewood facility will form one component of Santos's Narrabri Gas Project, and would treat over one million litres of toxic CSG wastewater each day.
In August 2015 the NSW Department of Industry approved the Leewood project through an amendment to the operational plan for Santos’ petroleum exploration in the area. People for the Plains argues that this approval is invalid because the Leewood project should have been assessed as an independent project, not as part of the company’s exploration work.
The Leewood project is best characterised as a waste or resource management facility, not a petroleum exploration project. Waste or resource management facilities need development consent under the NSW Government's State Environmental Planning Policy (Infrastructure) 2007. Santos avoided the need to obtain development consent by characterising the Leewood project as part of its broader petroleum exploration activities.
The development consent process for water treatment facilities is more rigorous and transparent than the process for petroleum exploration activities. It would require Santos to obtain an Environmental Impact Statement for the project, which would need to go on public exhibition for at least 30 days, giving the community a chance to have their say about the impacts of the proposal. It would also mean that, if the project is approved following this process, objectors would have the right to appeal this approval on the merits of the project in the Court.
We are grateful to barristers James Johnson and Simon Chapple for their assistance in this matter.
For more on this case:
Judgment, Court of Appeal, 14 March 2017
Judgment, Land and Environment Court, 1 August 2016
Have your say on the Environmental Impact Statement for Santos' Narrabri Gas Project. Public submissions due by Monday 22 May 2017.
Community group appeals decision to allow CSG water treatment facility to operate near Narrabri, media release, 30 August 2016.
Court gives green light to CSG water treatment facility near Narrabri, media release, 1 August 2016.
Defending the Pilliga in Court, blog, 21 January 2016.
- Link to this case summary.
Western Downs Alliance v Minister for the Environment and Energy & Santos Limited
Acting for Western Downs Alliance, we successfully negotiated for important environmental conditions to be added to the approval of Santos’s GLNG Gas Field Development Project in the Surat Basin, Queensland.
Western Downs Alliance challenged the Federal Minister for the Environment and Energy’s approval of the project on the basis that the Minister allowed millions of litres of coal seam gas (CSG) waste water from the project to be released into surface water systems such as the stunning and environmentally important Dawson River without having assessed the environmental impacts this would have.
Australia’s environmental laws require that the Minister properly assess a major CSG project’s impacts on water resources (known as the water trigger). Western Downs Alliance argued that the Minister incorrectly formed the view that it was not necessary to assess the impacts of releasing CSG water to surface waters as part of the project approval, and that as a result the approval was unlawful.
The case was scheduled to be heard by a Full Bench of three judges of the Federal Court in Brisbane on Monday 13 February 2017. However, in December 2016, the Minister and Santos agreed to amend the approval by adding important conditions: that the project is prohibited from discharging CSG waste water to any watercourse; and that any proposed release in the future must be assessed by the Minister.
More about the project
Santos plans to develop 6,100 CSG wells across approximately 1 million hectares of land in the Surat Basin in south-central Queensland. This represents a substantial expansion on the 2,650 CSG wells approved for an overlapping (but significantly smaller) area in 2010.
Over the project’s predicted life of more than 30 years, Santos is proposing to extract up to 219 billion litres of water, with potential impacts on the Great Artesian Basin. The Environmental Impact Statement (EIS) for the project outlines proposed methods of managing the extracted water, one of which is to release water from the wells into surface water systems such as rivers and lakes.
Western Downs Alliance argued that the approval of the project was unlawful because the Minister did not properly assess the project’s impacts on surface water.
The EIS notes that the project is likely to have a number of surface water impacts, including:
- increased sedimentation;
- erosion of stream banks;
- surface water contamination, including toxicity to aquatic ecosystems; and
- altered surface water flow.
The Independent Expert Scientific Committee, which was set up in 2012 to provide scientific advice to decision makers on the impact that coal seam gas and large coal mining development may have on Australia's water resources, advised the Minister that there is ‘considerable scientific uncertainty about potential impacts [of this project] on surface water and groundwater and associated ecosystems’. The Committee specifically stated that the potential impacts of discharging water into the Dawson River, including ecological impacts, should be assessed.
By taking legal action, the Alliance has ensured that there will be no release of waste water to surface waters under this project and that any future proposal will require a separate application and assessment.
We are grateful to barristers Geoffrey Kennett SC and Ashley Stafford for their assistance in this matter.
Community group’s court action forces stricter environmental protections for Queensland coal seam gas project, media release, 9 January 2017
- Page for this case
Wollar Progress Association Incorporated v Wilpinjong Coal Pty Limited & Anor
Update: The Wilpinjong matter was heard in the LEC on 8, 9 and 12 February 2018. Judgment was handed down on 19 June 2018. The Court dismissed the case.
See our media release on the decision: Court decision reveals NSW laws are failing to create any meaningful nexus between what we say and what we do on climate change
The Wollar Progress Association, represented by EDO NSW, commenced proceedings in the Land and Environment Court to challenge a decision by the NSW Planning Assessment Commission (PAC) to allow the extension of the Wilpinjong open cut coal mine near Wollar, Mudgee.
Wilpinjong Coal, a subsidiary of Peabody, sought permission to expand its open-cut mining operations for an additional seven years and develop a new open cut pit that will bring the mine closer to the village of Wollar. The Wollar Progress Association has long held concerns about the impact of the Wilpinjong mine on the local community and the environment. The PAC approved the extension in April 2017.
The Wollar Progress Association argued that the approval is invalid because, amongst other things, the PAC hasn’t considered climate change impacts in the way it should according to NSW planning law. The NSW Government introduced a State Environmental Planning Policy in 2007 which requires decision-makers to consider the greenhouse emissions of mines, including downstream emissions. The law requires the decision-maker to have regard to relevant State or national policies, programs or guidelines. NSW currently has a target of net-zero emissions by 2050 under its 2016 Climate Change Policy Framework.
The Wollar Progress Association argued that the emissions from the burning of this coal should have been considered by the PAC in light of government objectives to reduce greenhouse gas emissions.
Image of Bayswater and Liddell power stations by Brian Yap via Creative Commons.
This is the first case to test the efficacy of these requirements, which were designed to ensure the climate change impacts of mining are fully assessed, including emissions arising from the burning of product coal once sold. The proper assessment of downstream emissions is particularly important in this case because a substantial proportion of the coal from the Wilpinjong mine is planned to be burned at power stations within NSW.
The Wollar Progress Association also argued that the approval is invalid on other grounds. Firstly, that the PAC was not properly constituted in accordance with legal requirements; secondly, that the PAC did not undertake a proper assessment of the impacts on biodiversity. The mine will clear endangered ecological communities.
Meg Lamb, Solicitor for EDO NSW, has carriage of this matter for Wollar Progress Association and our Principal Solicitor, Elaine Johnson, is the solicitor on record.
We are grateful to barristers Geoffrey Kennett SC and Joanna Davidson for their assistance in this matter.
- Link to this case summary
- Media Release: Climate impacts of coal before the court, 16 August 2017
- "Staggering": NSW emissions rule to be tested in court for the first time, SMH, 16 August 2017,
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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 in October 2017 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.
Rana Koroglu, Senior Solicitor at EDO NSW, had carriage of this case for 4nature.
EDO NSW is grateful to barristers Richard Lancaster SC and Nicholas Kelly for their assistance in this matter.
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Quipolly Water Action Group Inc v NSW Department of Industry
Our client, community group Quipolly Water Action Group (QWAG) successfully gained access to documents relating to the regulation of groundwater at the Werris Creek coal mine. The mine is located in north-west New South Wales near the Liverpool Plains and is owned by Whitehaven Coal.
The community group first requested access to the documents from the NSW Department of Industry, but was refused because the Department determined that the documents were ‘commercial’.
On behalf of our client, we requested the NSW Information Commissioner to review the Department’s refusal to release the documents. The Commissioner agreed that the Department’s decision was 'not justified'. However, the Commissioner’s decision was not binding, and the Department continued to refuse to release the documents to our client.
As a result, in early September 2016 we commenced proceedings in the NSW Civil and Administrative Tribunal (Tribunal), whose decision on whether the documents should be released would be binding.
On behalf of our client we argued that the documents are not commercial, in the legal sense, and that it is in the public interest to release these documents: groundwater is a critical shared resource, and it is important that the community knows what impact mines are having on groundwater and how the government is regulating such impacts.
On 27 September 2016 the Department made a decision to release the documents to our client. However, this new decision had the effect of renewing Whitehaven Coal’s third party appeal rights, meaning that access by at least 40 working days, or longer if Whitehaven decided to join the proceedings.
In mid-October, we appeared before the Tribunal to argue why the documents should be released to our client before the expiry of the 40 working day period.
On 8 November 2016, the Tribunal published its preliminary decision, which agreed with our argument that the Department’s 27 September decision to conditionally release the documents was invalid because it was made after the proceedings were filed. The Tribunal also agreed to allow Whitehaven Coal seven days to join the proceedings so as not to prejudice any appeal rights. The Tribunal ordered that if Whitehaven failed to join the proceedings, the Department was to provide the documents to our client.
On 24 November 2016, we again appeared on behalf of QWAG in the Tribunal. As Whitehaven had not joined the proceedings, the Tribunal made an order for the documents to be released to our client within 24 hours.
With this decision, the community will gain unprecedented insight into how the the NSW Department of Industry is regulating the impacts of this and other coal mines in NSW. It is an important win for the public interest.
- Page for this case
Community granted access to information on groundwater regulation at Werris Creek coal mine
media release, 24 November 2016.
A dried up section of Quipolly Creek near the Werris Creek coal mine
Watts v Department of Planning and Environment
Mr John Watts, a member of the Gloucester community affected by AGL's Coal Seam Gas (CSG) project, succeeded in gaining access to important documents on changes made in 2014 to the NSW Government’s CSG policy.
Represented by EDO NSW, Mr Watts sought information from the Department of Planning and Environment about changes to CSG policy. The NSW Government amended its CSG policy in July 2014, with the result that many significant CSG projects could be approved without a full Environmental Impact Assessment.
The changes directly impacted on AGL's CSG fracking program, which was approved without a full Environmental Impact Assessment.
Mr Watts first sought access to the information in September 2014. After the Department refused access twice, Mr Watts sought a new decision in the NSW Civil and Administrative Tribunal. On 3 March 2016, the Tribunal released its decision ordering the Department of Planning and Environment to release information sought by Mr Watts.
While AGL has announced that it will not proceed with the Gloucester Gas Project, the release of the information is an important win confirming that policymakers are accountable to the community and that policies impacting the environment must be made transparently, and in accordance with the law.
We are grateful to barrister Alexander H Edwards for his assistance in this matter.
Hills around Gloucester. Image: Dean Sewell/Groundswell Gloucester
- Page for this case
- Read more about what the Government’s changes to CSG policy mean for the environment in our blog Less environmental scrutiny of CSG drilling in NSW under new rules.
- See our previous case on AGL's CSG activities in Gloucester: Barrington-Gloucester-Stroud Preservation Alliance Incorporated v Planning Assessment Commission and AGL
Lock the Gate v Dept of Planning & Environment / Dept of Premier & Cabinet
Our client Lock the Gate sought access to information held by the NSW Government about secretive deals relating to the “buy-back” of the coal exploration licence for Shenhua Watermark Coal Pty Limited’s (Shenhua) controversial Shenhua Watermark Coal Mine in the Liverpool Plains in north central NSW, one of the nation’s most productive agricultural regions.
Lock the Gate argues that the public has a right to know about deals made behind closed doors in relation to the exploration and development of the proposed Watermark coal mine. Lock the Gate argues that accountability and transparency in this case are essential given the significant predicted impacts of the Watermark mine on the Liverpool Plains, the nation’s agricultural industry, local communities and the environment.
On behalf of Lock the Gate, we asked the NSW Civil and Administrative Tribunal to decide that the release of this information is in the public interest.
This matter was heard on 9 May 2018.
In January 2019, the NSW Civil and Administrative Tribunal upheld the decision of the NSW Government to withhold key documents relating to the Shenhua Watermark Coal Mine.
Farmland on the Liverpool Plains. Photo: Lock the Gate Alliance.
In July and September 2017, respectively, Lock the Gate made applications to the NSW Department of Planning and Environment and the NSW Department of Premier and Cabinet for information about Shenhua’s application to renew its exploration licence for the Watermark mine. That information encompasses secretive dealings between Shenhua and the NSW Government that resulted in the buy-back of around 51% of the exploration licence, which covered the highly fertile “black soils” of the Liverpool Plains, at the cost of $262 million to the public.
Whilst the NSW Government claims that the buy-back was necessary to protect the black soils from mining, and thereby the agricultural industry of the Liverpool Plains, Lock the Gate contends that the buy-back will do nothing to lessen the expected impacts of the mine. Furthermore, Lock the Gate argues that the buy-back was completely unnecessary. The NSW Government could have used its powers under the Mining Act to reduce the size of the exploration licence by 50% upon its renewal without the payment of any compensation to Shenhua.The NSW Government could also have cancelled the exploration licence outright given that Shenhua had allegedly failed to comply with a condition of the licence that required substantial development of the Watermark mine to have commenced by October 2016, eight years after the initial grant of the licence in 2008.
The information sought by Lock the Gate includes Shenhua’s submissions on the licence renewal application, its request for the abovementioned licence condition to be suspended, Ministerial briefings and draft deeds of agreement about coal exploration and mining titles. The NSW Government has withheld this information on the basis that, amongst other things, it contains Cabinet information, was provided in confidence, or that its release may be prejudicial to Shenhua’s business interests – and therefore that there is an overriding public interest against its disclosure.
On the contrary, Lock the Gate argues that the overwhelming public interest in the release of the information is clear.
Access to this information will increase the accountability and transparency of the NSW Government in relation to the exploration and development of coal in the Liverpool Plains. This is particularly important in these circumstances where the Government has done deals with a private, foreign-owned, coal mining company behind closed doors and these have resulted in the expenditure of vast amounts of public funds without clear justification.
Access to this information is also vital for the public to have confidence in the decision-making processes of the NSW Government in relation to dealings about coal mining and exploration projects. This is essential where these dealings involve projects that are likely to have significant economic, social and environmental impacts and in which a number of stakeholders have expressed competing views. The more transparency around those deliberative processes, the more likely it is that they will be of high quality and will serve the public interest.
Brendan Dobbie, senior solicitor for EDO NSW, has carriage of this matter for Lock the Gate and our Principal Solicitor is the solicitor on record.
We are grateful to barrister Scott Nash for his assistance in this matter.
- NCAT decision on Shenhua coal documents
- 'Surrounded by secrecy'
Link to this case summary.
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Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and NSW Minister for Planning
EDO NSW represented local community group, Upper Mooki Landcare, in its legal challenge in the NSW Land and Environment Court to the approval of mining company Shenhua’s open cut coal mine on one of Australia’s most productive farming areas, the Liverpool Plains in north-western NSW.
On 19 February 2016 the Court dismissed our client's case, finding that the approval of the mine is valid. This means that the mine can go ahead subject to the conditions of the approval. Read the judgment.
If the mine goes ahead, it will lead to the clearing of 847 hectares of koala habitat.
These were judicial review proceedings arguing that the NSW Planning Assessment Commission (PAC), which approved the mine on behalf of the NSW Minister for Planning, failed to properly consider whether the mine was likely to significantly affect koalas, a threatened species, as required by the Environmental Planning and Assessment Act 1979 and the Threatened Species Guidelines.
The group contends that the PAC failed to assess whether the mine would place a viable local population of Koalas at risk of extinction, as required by NSW Environmental Planning and Assessment Act 1979.
Koalas are currently listed as vulnerable to extinction in NSW under State and Federal law after numbers dropped a third over the past 20 years. This means they are facing a high risk of extinction in NSW in the medium-term future.
The PAC stated: “The [Gunnedah Koala] population has reduced significantly, as a result of droughts and heatwaves, with the estimated reduction of up to 70% since 2009.”
The evidence before the PAC was widely varying in terms of the estimates of Koalas within the Gunnedah Local Government Area. Shenhua used population estimates of 12,753 animals for the entire Gunnedah Local Government Area. The Australian Koala Foundation estimates that there are only 800-1,300 animals in the Gunnedah Local Government Area.
The NSW Office of Environment and Heritage, in its submission to the mine assessment process, stated: “The assessment of significance [of impacts] for the Koala is totally inadequate. No details of the actual Koala population to be impacted upon, nor what impact the Project will have on the population is provided.”
The plan for managing the impact of clearing 847ha of the Koala habitat noted in the PAC’s report is that “the animals will be encouraged to naturally move away from the habitat that is being cleared. If the animals do not naturally move, then a translocation plan will be implemented”. There was evidence before the PAC that translocation programs have resulted in significantly high mortality rates.
A hearing took place from 31 August to 3 September in the NSW Land and Environment.
EDO NSW would like to thank barristers Patrick Larkin SC, Jennifer Stuckey-Clarke and Scott Nash for their assistance with the case.
Upper Mooki Landcare Group awarded Marie Byles Award
The Upper Mooki Landcare Group has won the Marie Byles Award at the 2015 NSW Environment Awards for their Land and Environment Court challenge to save the Breeza koalas on the site of Shenhua’s open cut Watermark coal mine on the Liverpool Plains. Congratulations Upper Mooki Landcare Group!
This award commemorates Marie Byles (1900-1979), the first female solicitor in NSW, and a passionate conservationist. This award is given to a group that has initiated an outstanding new environmental campaign and demonstrated strong commitment and passion for the conservation.
Image: Adi Firth
Ashton Coal Operations Limited v Hunter Environment Lobby & Minister for Planning
The Hunter Environment Lobby, represented by EDO NSW, successfully defended Ashton Coal’s appeal of a Court condition imposed on the company’s expansion of its coal mine near Camberwell in the Hunter Valley.
The Land and Environment Court found that, while approval could be granted for the expansion, the development could not start until Ashton purchased, leased or licenced Mrs Bowman’s property. This is because the project had been environmentally assessed on the basis that the open cut coal mine will totally consume Mrs Bowman’s property. The Court accepted that Ashton Coal needs Mrs Bowman’s property before it starts the project, both to access the coal, and to manage impacts to groundwater and surface water from the mine.
Ashton Coal appealed the decision in the NSW Court of Appeal. The Court dismissed the appeal in November 2015, meaning that Ashton Coal to needs to purchase, lease or licence Mrs Bowman’s property before it can start the project.
EDO NSW is grateful to barristers Robert White and Mark Seymour for representing the Hunter Environment Lobby in the Court of Appeal.
Wendy Bowman. Image: Dean Sewell
- Page for this case
Another win for the New South Wales environment! Coal mine expansion denied on appeal,
media release, 20 November 2015
- Land and Environment Court case and judgment August 2014
IFAW v NOPSEMA
The International Fund for Animal Welfare (IFAW), with the help of EDO NSW, obtained access to important documents on a decision to allow Bight Petroleum to undertake seismic exploration in blue whale feeding grounds near Kangaroo Island, off South Australia.
IFAW took legal action in the Administrative Appeals Tribunal in April 2015, after NOPSEMA refused to release its assessment documents and the full Environmental Plan for the seismic testing.
Bight Petroleum objected to the release of the full Environmental Plan on the grounds that the release would adversely affect its business affairs. The Environmental Plan is the regulatory document with which Bight Petroleum must comply; without the full plan there is no way for the public to ensure the company is meeting its obligations under the law.
In addition, NOPSEMA refused to release its own assessments on the basis the documents would reveal its deliberative process. Without NOPSEMA’s own assessment of Bight Petroleum’s environmental plan, there was no way for the public to verify if NOPSEMA is properly fulfilling its regulatory functions, which includes assessing the impacts from proposed developments on matters of national environmental significance.
This was the first seismic exploration licence that NOPSEMA assessed and approved since Environment Minister Greg Hunt handed over his approval powers to the industry regulator in February last year as part of the Australian Government’s plan to devolve environmental powers to States and industry bodies.
In January 2016, NOPSEMA released the documents by consent order of the Administrative Appeals Tribunal. Read more at our blog Petroleum exploration documents released for public scrutiny, 13 January 2016.
EDO NSW is grateful to barrister Natasha Hammond for her assistance in this matter.
Whale ship and whale. Source: New England Aquarium taken under permit authorized by NOAA
- Page for this case
- Petroleum exploration documents released for public scrutiny, EDO NSW blog 13 January 2016
- Legal challenge seeks documents on seismic testing in whale zones, EDO NSW blog, 28 May 2015.
Hunter Environment Lobby v Office of Environment and Heritage
On behalf of the Hunter Environment Lobby (HEL), EDO NSW has succeeded in an appeal to the NSW Civil and Administrative Tribunal to obtain access to documents relating to the Warkworth Continuation Project in the Upper Hunter Valley.
The continuation project would see an expansion of the Warkworth mine in an area of unique forest containing endangered plant and animal species.
HEL sought access to documents that record communications between the Office of Environment and Heritage (OEH), the Department of Planning & Environment, and Warkworth Mining Ltd about the Biodiversity Offset Strategy for the Warkworth Continuation Project.
In 2012, the Planning Assessment Commission (PAC) approved an application to extend Warkworth open cut coal mine. The project would have extended the life of the mine for 10 more years (until 2031), allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village.
In April 2013 the PAC’s approval of the Warkworth Continuation project was set aside by the Chief Judge of the Land and Environment Court, and that decision was upheld in April 2014 by the NSW Court of Appeal. A key reason for the Court’s refusal of the mine extension was its unacceptable impacts on biodiversity. Read more about those cases.
In 2015, the PAC approved a new application for the extension project. EDO NSW is representing Bulga Milbrodale Progress Association to challenge this decision.
Access to information
HEL argued that any documents relating to discussions between the mining company and the NSW Government are directly relevant to the PAC’s consideration of the new application, and should therefore be made publicly available.
The OEH originally determined to release the documents to HEL in full under access to information laws. However, it later advised EDO NSW that a third party had objected to full disclosure on the basis that the OEH had not made public its decision within the required 15 days. On this basis, the OEH decided to remake its original decision, this time determining to provide only partial access to the documents.
However, on 20 October the NSW Civil and Administrative Tribunal granted HEL access to the documents in full.
What happens next?
In October 2015, the PAC recommended that the project is approvable subject to conditions. This is despite the Land and Environment Court’s 2013 decision that Warkworth’s almost identical previous application for the extension could not be approved because the impacts of the project on the environment and the community would have been too significant.
- PAC determinations and reviews of the Warkworth extension project
- Our other case work on the Warkworth extension project
Warkworth coal mine. Image: John Krey
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Mackay Conservation Group v Commonwealth of Australia and Adani Mining
On behalf of the Mackay Conservation Group (MCG), EDO NSW successfully challenged the Federal Government’s approval of the Carmichael coal mine in central Queensland, which would be one of the largest coal mines in the world.
MCG’s claim alleged that Federal Environment Minister, Greg Hunt, failed to properly consider the impact of the Carmichael mine on the Great Barrier Reef, when he approved the project by Indian company, Adani Group, in July last year.
Given that climate change is the greatest threat to the survival of the Reef, Mackay Conservation Group says that the Minister should have considered greenhouse gas emissions arising from the burning of the coal by Adani in India, not just the emissions from mining the coal.
MCG says that under the Environment Protection and Biodiversity Conservation Act 1999, the Minister unlawfully limited his consideration of greenhouse gas emissions from the mine to those that are reportable under the under the National Greenhouse and Energy Reporting Act 2007 Act, which covers only emissions from mine operations.
However, emissions from the burning of the coal once it is exported to India will by far eclipse any emissions generated in Australia by the mining process itself.
The claim also alleged that the Minister failed to properly consider Adani’s poor environmental record in India before approving the mine. In 2013 the Indian government found Adani guilty of serious breaches of Indian environmental law, including illegally clearing mangroves and destroying tidal creeks. Indian Courts had also found in 2012 that infrastructure associated with the Adani’s port in Mundra had been built without environmental approvals. The case alleged that the Minister ignored that evidence, instead relying on an earlier statement made by Adani in 2010 that it has a good environmental record overseas.
However it was the Minister's failure to take into account the approved conservation advices for the Yakka Skink and the Ornamental Snake that resulted in the victory.
EDO NSW is grateful for the assistance of barristers Geoffrey Kennett SC, Ashley Stafford, and Chris McGrath in the preparation and running of this case.
Read our media release.
Read our blog responding to claims the win was a mere 'technical hitch'.
Read our blog about the proposed changes to the Environment Protection & Biodiversity Conservation Act in the wake of the decision.
On 15 October 2015, the Federal Minster announced the re-approval of the mine, with additional compliance conditions. Read the Minister's statement of reasons.
Mullaley Gas and Pipeline Accord Inc v Santos
Coal seam gas (CSG) company Santos agreed on 1 September 2014, in the NSW Land and Environment Court, to provide water monitoring data after legal action by farmers seeking information relating to the contamination of water bores on a property in the Pilliga Forest, near Narrabri, in north-west NSW.
On 21 May 2014, the local farming group, Mullaley Gas and Pipeline Accord Inc (MGPA), represented by environmental legal centre, EDO NSW, applied to the Land and Environment Court for a preliminary discovery order for any relevant information held by Santos. The company had previously refused to provide all these documents.
The action followed the contamination of freshwater bores on the property of a farmer, whose land adjoins a site used for exploratory CSG drilling. He was advised by Santos in 2012 that the bore water was unfit for drinking and domestic use. Another bore, closer to the CSG site, has also shown effects of possible contamination.
The Land and Environment Court order, agreed by both parties, was for Santos to provide a range of documents including;
- all test results from sampling of bores on the property with the contaminated bore, and expert advice to Santos about this testing;
- all test results from water and soil samples from a group of pilot CSG drilling sites, part of Santos’ Dewhurst CSG site, which are to the north of the property;
- all water quality testing results for groundwater samples and monitoring held by Santos taken from stock and domestic bores within a 4km radius of these CSG drilling sites; and
- All documents detailing the history of storage of wastewater produced at the Dewhurst CSG, site including reports on any leaks, spills or overflows.
Santos deny any responsibility for the contamination but the MGPA have said water testing and expert scientific advice identifies CSG activities as a possible source.
The information provided by Santos will assist the farmers group to decide whether to launch civil enforcement proceedings against the company for water pollution under the Protection of the Environment Operations Act 1997 (NSW).
Barrington-Gloucester-Stroud Preservation Alliance Incorporated v Planning Assessment Commission and AGL Upstream Infrastructure Investments Pty Limited
Update: On 4 February 2016, AGL announced that it will not proceed with the Gloucester Gas Project.
EDO NSW, on behalf of Barrington-Gloucester-Stroud Preservation Alliance Inc. commenced judicial review proceedings against two decisions of the Planning Assessment Commission (PAC) to approve parts of the Gloucester Gas Project.
The Gloucester Gas Project involves 110 coal seam gas wells within a 210km area between Barrington and Great Lakes, transporting the gas from the processing facility to the existing gas supply network via a 95-100 km pipeline traversing several local government areas, and a gas delivery station at Hexham. The Alliance is concerned about the risks of surface and groundwater contamination and the lack of data about groundwater impacts.
The key issue raised by the Alliance in the hearing before the Land and Environment Court was that the PAC failed to properly apply the precautionary principle in approving the development on the basis of only preliminary groundwater investigations, and that certain conditions imposed in relation to groundwater and wastewater left open the possibility of a significantly different development from that for which approval was sought and were therefore uncertain. Justice Pepper dismissed the claim, stating that the conditions imposed in relation to the project were within the permissible limits of Part 3A, were not uncertain with respect to impacts, and that the precautionary principle was adequately considered by the PAC in granting the project approval.
In relation to ecologically sustainable development (ESD) the Court held that, although there is no direct reference to ESD principles contained within s 7 of the Environmental Planning and Assessment Act 1979, the Minister is nevertheless charged with the responsibility of promoting development for the purpose of carrying out the objects of the Act, one of which is ESD. However, the Court concluded that the (decision maker) was obliged to consider ESD principles only “at a high level of generality”, no particular method of analysis or the outcome that should result from this consideration is mandated, and consideration of ESD principles does not require specific reference to the particular principles comprising ESD.
EDO NSW acknowledges and thanks Richard Lancaster SC and Nick Eastman for their advocacy and advice in this matter.
See our more recent case relating to AGL's CSG activities in Gloucester: Watts v Department of Planning and Environment
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited
In 2013, EDO NSW represented the Bulga Milbrodale Progress Association in its appeal of an approval to extend to an open cut coal mine operated by Warkworth Mining Ltd (owned by Rio Tinto). The project would have extended the life of the mine for 10 more years (until 2031), allowed the extraction of an additional 18 million tonnes of coal from the mine every year, and would have brought the mine closer to Bulga village.
Controversially, the approval also allowed the open cut mining of part of a biodiversity offset that was required to be protected as a condition of the existing approval given in 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 Association also argued that the social impacts of the extension on Bulga residents would be unacceptable, particularly as a result of increased noise and dust. The Association also presented expert evidence about the economic impacts of the project. This was the first time that environmental economics had been presented before the court in deciding a mining project.
The Association sought refusal of the mine extension on the basis that the mining of the biodiversity offset is contrary to the public interest and ecologically sustainable development, and that the expansion will result in detrimental economic and social impacts on the Bulga community that are contrary to the principles of ecologically sustainable development.
The Land and Environment Court upheld the Association’s appeal and disapproved the project application. The Court concluded 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.
Mining company appeal
Shortly after the Land and Environment Court’s disapproval of the project, Warkworth appealed to the NSW Court of Appeal, arguing that the Land and Environment Court had made legal errors in disapproving the project. The Court of Appeal unanimously dismissed Warkworth’s appeal, finding no fault with the Land and Environment Court’s decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species. The Court dismissed Warkworth’s appeal and ordered Warkworth to pay the Association’s costs.
EDO NSW is very grateful to Senior Counsel John Robson and Counsel Robert White for their advice and advocacy in the appeal, and to Counsel Robert White for his advice and advocacy in the matter at first hearing.
New application for the mine extension
In 2015, Warkworth lodged a new, but essentially the same, application for an extension to the mine. The Planning Assessment Commission held a number of public hearings into the application, which means that the community’s appeal rights to have the Land and Environment Court rehear the case have been extinguished. The PAC approved the new application in 2015.
EDO NSW continues to assist the Bulga Milbrodale Progress Association Inc in its tireless efforts to seek environmental and social justice.
We acted for the Hunter Environment Lobby in separate proceedings seeking access to documents relating to the new application.
Coastwatchers Association Inc & South East Region Conservation Alliance (SERCA) v Minister for Planning & Another
EDO NSW acted for the Coastwatchers Association and South East Region Conservation Alliance (“SERCA”), in their appeal against the Planning Assessment Commission's decision to approve an application by Big Island Mining Pty Ltd to establish and operate a gold mine near Majors Creek, NSW.
The mine was ultimately approved in February following negotiations between the parties that led to a better environmental outcome than if the original approval had not been appealed.
The new safeguards include an improved design for the tailings dam which addressed concerns that high rainfall events would cause the dam to overflow. The new design features incorporate the need to consider the Possible Maximum Flood level for the region.
In addition, there will be biannual monitoring of steam health and channel stability in Spring Creek and Majors Creek; all monitoring, major incident reports and other relevant information must be made public within 28 days; there will be measures to prevent birds and animals from entering the tailings dam; there will be an offsite biodiversity offset to protect additional areas of the Tablelands Basalt Forest endangered ecological community; and safeguards to make sure that any water released from the old workings will not have a negative impact on the water quality of Majors Creek. There will also be further consultation with indigenous stakeholders.
All water users downstream of the project can now register to be informed of the results of monitoring, or of any major incidents on the site.
EDO NSW is grateful to barrister C Ireland for his assistance in this matter.
Dean v Minister for Planning and Andros Australia Pty Limited
EDO NSW represented Annika Dean, who argued that the Anvil Hill Coal Project, a large open cut coal mine approved under Part 3A of the Environmental Planning and Assessment Act 1979, should not have been approved by the Minister for Planning because the Musswellbrook Local Environmental Plan (LEP) wholly prohibited the development. The Land and Environment Court found that while some parts of the development were prohibited, other parts of the development were permitted under the LEP, and dismissed Ms Dean's application.
EDO NSW is grateful to Lucy McCallum SC and Chris McGrath of Counsel for their assistance in this matter.
Judgment - Order on costs
Fullerton Cove Residents Action Group Incorporated v Dart Energy Limited
EDO NSW acted for Fullerton Cove Residents Action Group (FCRAG) in a challenge to Dart Energy’s proposal for the drilling of coal seam gas exploration wells at Fullerton Cove near Newcastle. The Pilot Appraisal Exploration Program (PAEP) is for two vertical wells drilled into two separate coal seams, with four lateral wells, two in each coal seam. The PAEP includes the continuous pumping of water out from the coal seams (16,000 Litres per day) for 12 months, allowing the gas to flow. It is to be located on a floodplain zone, in a high water table area, near an internationally-listed RAMSAR wetland.
FCRAG argued that the PAEP is high-impact development, and Dart should have prepared a full Environmental Impact Statement (EIS), and be subject to the formal public consultation processes under Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). FCRAG also argued that the PAEP was not properly assessed under Part 5 of the Act, particularly in relation to potential impacts on groundwater, threatened species and ecological communities. In particular, the Department of Trade and Investment had not been provided with any groundwater assessment by Dart before approving the project.
On 5 September 2012, FCRAG was successful in obtaining an injunction restraining Dart Energy from drilling the wells until the main case had been decided. The injunction was necessary because Dart refused to agree to stop work while the case was on foot. In delivering judgment, Justice Sheahan found that FCRAG had a reasonably arguable case, and that damages would not be an adequate remedy if the injunction was refused and significant environmental harm was caused beneath the surface. His Honour recognised that this was a public interest case, and as such, FCRAG was not required to provide any undertaking as to damages.
The main proceedings were heard in the Land and Environment Court on 15-19 October 2012 before Justice Pepper. On 28 March 2013, Justice Pepper dismissed FCRAG’s case, delivering a 339 paragraph judgment on the legal and factual issues. The Court found that although there was no consideration of any groundwater assessment, the Department had complied with its requirements to consider environmental impacts “to the fullest extent possible” under s111 of the EPA Act. Her Honour took into account the fact that this was a pilot project, and the Department had general knowledge of the geology of the area, and information collected in reports for nearby exploration wells. Justice Pepper also found that there was no failure to consider biodiversity impacts, as the Department had “general regard” to the seven-part test for threatened species under section 5A of the Act.
The Court agreed with FCRAG’s view that the decision as to whether or not an activity is likely to have a significant impact is one that should be determined objectively by the Court, regardless of any opinion formed by the Department under Part 5 of the Act. However, Justice Pepper found that in this case, the project was not likely to have a significant effect on the environment, and that therefore no EIS was required.
The Department pursued its costs of the case from FCRAG, claiming that the case was not brought in the public interest. Dart Energy did not pursue its costs. FCRAG requested the Court to not make a costs order against them under Rule 4.2 of the Land and Environment Court Rules 2007, on the basis that the case was brought by them in the public interest. The Court refused to award costs to the Department, saying that FCRAG's case ‘epitomises the very concept of litigation properly brought in the public interest'. The Court also ordered the Department to pay FCRAG's legal costs in relation to the Department's cost application.
EDO NSW is grateful to barristers Ian Hemmings and Verity McWilliam for their assistance with this matter.
Judgment - Application for injunctive relief
Judgment - Regarding costs
Hunter Environment Lobby v Minister for Planning & Ashton Coal Operations Limited
Update: In November 2015 the NSW Court of Appeal dismissed Ashton Coal’s appeal of the decision in this case. Read about the appeal.
The Hunter Environment Lobby, represented by EDO NSW, appealed the NSW Planning Assessment Commission (PAC)’s 2012 approval of Ashton Coal’s expansion of its open cut coal mine next to the village of Camberwell in the Hunter Valley. The PAC had previously refused the expansion in December 2011, finding that it would have unacceptable impacts on human health due to air pollution, and on water resources, including Glennies Creek and the Hunter River. The refusal was based on submissions from the NSW Department of Health (including a report by the CSIRO) detailing regular breaches of air quality standards at Camberwell, and the NSW Office of Water, both opposing the project. However, the PAC’s 2011 refusal was reversed after the submission of a new report on health and water impacts by the NSW Department of Planning, and the PAC granted approval for the expansion to proceed in 2012.
The Land and Environment Court heard the Hunter Environment Lobby’s appeal in September 2013. The group was concerned about the impacts of the mine expansion on the health of nearby residents as a result of dust emissions (PM10 and PM2.5), loss of Aboriginal cultural heritage, reduced agricultural productivity, threats to key water resources and the economic justification for the project. The case was heard in Sydney, but the Court also attended a site visit in Camberwell, followed by the hearing of objector evidence. The Court also heard expert evidence from hydrologists, economists, air quality experts and archaeologists.
The Court determined that the approval could be granted for the expansion but that it must be subject to adequate conditions. Importantly, the Court determined that no development could be commenced by Ashton Coal until it has acquired “Rosedale”, a property which is located in the proposed mine pit, from its owner Mrs Wendy Bowman. This is because the project had been assessed on the basis that the Mrs Bowman would not be living there during the life of the project given the severe impacts from the mine on the residence. The Court also imposed a compensation condition for two neighbouring rural properties heavily impacted by the mine, including a dairy farm which has been in the same family since the 1830’s, one of the oldest farming families remaining in the Upper Hunter.
The Court also imposed strengthened conditions relating to the management of impacts to biodiversity, blasting conditions and land acquisition. With regards to dust, the Court declined to impose any specific criteria for fine particulate matter (PM2.5) given that current air quality standards for PM2.5 are only advisory. However the Court did strengthen conditions relating to the public’s ability to access information on air quality monitoring undertaken by Ashton.
EDO NSW is grateful to barristers Robert White and Corrina Novak who acted as Counsel for the Hunter Environment Lobby.
Hume Coal Pty Ltd v Alexander
EDO NSW represented Southern Highlands landholders (Mr and Mrs Alexander) in defending proceedings brought by Hume Coal Pty Ltd, a Korean owned mining company.
An access arrangement had been entered into by Hume Coal Pty Ltd with a landowner (neighbouring the Alexanders' property) who owns the property where prospecting is taking place (Mr Koltai). To access Mr Koltai's property for prospecting, Hume Coal Pty seeks to use a carriageway located on the Alexanders' land. However Hume Coal has not entered into an access arrangement with the Alexanders. Further, restrictive covenants have been placed on both of the relevant properties that restricts the land from being used for commercial or industrial purposes.
On 7 December 2012 Hume Coal's application for an interlocutory (interim) injunction was refused. Hume sought to restrain the Alexanders from allowing invitees onto their private land (the invitees had formed a blockade on the carriageway) preventing Hume Coal from accessing Mr Koltai's property via the carriageway in order to conduct prospecting operations. The judgment refusing the interim injunction can be found by clicking the Judgment - interlocutory injunction below.
In proceedings before the Court on 14 December 2012 Hume Coal Pty Ltd was successful in seeking an order that the matter be expedited. Read the judgment by clicking the Judgment - proceedings expedited link below.
The final hearing of Hume Coal's application for a final injunction against the Alexanders was heard by the Land and Environment Court on 18 February 2013. On 3 May 2013 the Court granted a final injunction to Hume Coal to use a carriageway in the Southern Highlands to undertake exploration activities, and ordered the owners of the carriageway, the Alexanders to take steps to prevent third parties blockading it. Hume Coal had originally sought an interim injunction that was refused in December 2012. In granting the final injunction, the Court has allowed Hume Coal to use the carriageway on the basis that the Mining Act 1992 essentially overrides the rights of landowners and provides for terms of access for exploration.
The Court rejected the argument of the Alexanders that the mining company required an access agreement with them prior to use of the carriageway. The Court also rejected arguments that a restrictive covenant on the property which sought to prevent industrial uses prevented mining exploration. The decision to grant Hume a final injunction can be found by clicking the Judgment below.
Hume sought its costs of the case from the Alexanders. The Alexanders requested that the Court not make a costs order against them on the basis that the case was defended by them in the public interest at a local, community, and State level. However, the Court found that these proceedings were not ‘public interest' proceedings, and ordered the Alexanders to pay Hume Coal's legal costs. See the Judgment regarding costs below.
EDO NSW is grateful to barristers Ms Jane Needham SC and Mr Simon Chapple for their assistance in these proceedings.
Judgment - Interlocutory injunction refused
Judgment - Hearing of the proceedings expedited
Judgment - Regarding costs
Hunter Environment Lobby Inc v Minister for Planning and Ulan Coal Mines Ltd
EDO NSW acted for the Hunter Environment Lobby in a merits appeal that challenged the Minister for Planning's approval of a proposed expansion Ulan coal mine’s underground mining operations and new open cut mining operation.
On 24 November 2012 the Court handed down judgment in Hunter Environment Lobby Inc v Minister for Planning  NSWLEC 221. The Court held that approval should in principle be granted to Ulan’s project, subject to further submissions from the parties in order to finalise the conditions in relation to groundwater, biodiversity offsets and the offsetting of Ulan’s scope 1 greenhouse gas (GHG) emissions.
The groundwater and biodiversity offset conditions were finalised during further proceedings in February 2012. The Court, following its decision in December that a biodiversity corridor to increase connectivity between two distinct biodiversity offset areas was appropriate, finalised the area of that corridor and commensurate conditions.
Regarding the GHG condition, Hunter Environment Lobby argued that the Ulan mine should be required to offset its scope 1 GHG emissions to the extent that they are not required to pay a carbon price for those emissions under the Clean Energy Act 2011 (Cth).
In a judgment handed down on 13 March 2012, Hunter Environment Lobby Inc v Minister for Planning (No 2)  NSWLEC 40, the Court declined to impose the GHG condition because it found that the Clean Energy Act 2011 and related legislation would cover most of the mine’s activities which result in scope 1 emissions and therefore the purpose of the condition would be met by the legislation. The Court also found that the extent to which the Clean Energy Act 2011 would not cover all of the mine’s scope 1 emissions was negligible and therefore the proposed condition was unnecessary. Finally, the Court found that there is an unsatisfactory level of uncertainty in relation to the offsets market sought to be utilised under the condition.
This was a landmark case in that the condition sought was the first of its kind to be considered by the Court. The Court’s original judgment in December, in which it expressed an intention to impose the GHG condition pending consideration of the implication of the Clean Energy legislation, sets a precedent which may prove useful in other contexts.
EDO NSW would like to acknowledge Philip Clay, SC for his advocacy in these proceedings.
On 8 May 2012, the Land and Environment Court handed down its judgment on the question of costs in the Ulan case. The Court rejected Ulan Coal Mines Ltd's application for costs incurred in relation to the GHG emissions issue, and also ordered that Ulan pay the Applicant's costs of the costs hearing. This is a strong judgment in favour of public interest litigation.
EDO NSW would like to congratulate and thank Mark Seymour, counsel, who appeared for the Hunter Environment Lobby.
Judgment - Order on costs
Illawarra Residents for Responsible Mining Inc v Gujarat NRE Coking Coal Ltd
EDO NSW represented Illawarra Residents for Responsible Mining Inc (IRRM) in Class 4 judicial review proceedings in in the Land and Environment Court of NSW. IRRM sought among other things, an order restraining Gujarat from carrying out mining at an area referred to as ‘Longwall 4' until specific approval or development consent under the Environmental Planning & Assessment Act 1979 (EP&A Act) was granted.
In April 2012, Gujarat commenced mining operations at Longwall 4. Our client is concerned that the operations being undertaken, although within the area covered by consolidated coal licence 745, are not within the area to which the original Project Approval gives approval to carry out mining operations. Furthermore, that in commencing and continuing operations at Longwall 4 without project approval under Part 3A or development consent under Part 4, Gujarat is in breach of the EP&A Act.
Subsequent to the commencement of proceedings, Gujarat made an application to the Court requiring IRRM to provide a bank guarantee for the sum of $75,000 to secure the respondent's costs in the event that proceedings were unsuccessful. On 22 November 2012, the Court handed down judgement in relation to this application. The Court made orders upholding Gujarat's motion for security for costs, but settling the sum at $40,000. The substantive proceedings were stayed pending compliance with this requirement by IRRM, with which it was unable to comply.
On 13 December 2012 the proceedings were discontinued by consent of both parties.
EDO NSW is grateful to barrister Mark Seymour for his assistance in these proceedings.
Ironstone Community Action Group Inc v Minister for Planning & Duralie Coal Pty Ltd
EDO NSW acted for the Ironstone Community Action Group (ICAG) in Class 1 merits appeal in the Land and Environment Court against the approval of Duralie Coal's extension project for an open cut coal mine between Stroud and Stratford in the Barrington Tops area. ICAG was concerned about the impact of the mine on water quality in the Mammy Johnsons River , the endangered Giant Barred Frog, dust impacts from the mine on human health, and impacts on biodiversity in the region.
This merits appeal was heard by Chief Justice Preston, with Acting Commissioner Smith, during an eight-day hearing held on 9-13 and 18 May, 27 June and 1 July 2011. The case was heard in Sydney , but the Court attended a site visit in Gloucester on Thursday, 12 May 2011, followed by the hearing of objector evidence in the Gloucester Court House that afternoon.
On 10 November 2011, Justice Preston upheld ICAG's appeal, but granted approval for the open cut coal mine, with substantially revised conditions. With regards to dust, his Honour declined to impose any specific criteria for fine particulate matter (PM2.5), but required Duralie to make public all management plans, studies and reports on its website to increase transparency and accountability. Duralie must also protect biodiversity offset areas in perpetuity by either entering into a conservation agreement under the National Parks and Wildlife Act 1974 , or creating a public positive covenant over the land. The Court imposed a “no direct discharge” condition for water, and stronger monitoring requirements for the GBF. There are also a number of conditions that deal with dust and noise, which was a response to evidence submitted by residents during the hearing.
EDO NSW and ICAG are grateful to barrister Ashley Stafford who appeared for ICAG during the proceedings.
Judgment - Final orders
Maules Creek Community Council v Whitehaven Coal
EDO NSW, on behalf of the Maules Creek Community Council Inc (MCCC), on 6 June 2014 sought an injunction in the NSW Land and Environment Court to stop Whitehaven Coal from clearing the high conservation value Leard State Forest during winter when animals are hibernating and during spring when threatened bird and bat species are breeding.
The basis of the case was that the Biodiversity Management Plan (BMP), required under the approval for the Maules Creek Open Cut Coal Mine, stated that any clearing of the forest ought to be done outside of the winter and spring months. This was to allow the threatened species in this forest a fighting chance to survive the clearing of their habitat.
Whitehaven Coal sought to amend its BMP to allow clearing the forest through winter for the first year of its mining operations because it was behind in its mining development plans. The Department of Planning allowed Whitehaven’s amendment. MCCC argued that the amendment was invalid based on a failure to consult designated stakeholders and therefore the clearing that was taking place was unlawful.
The BMP is a legal document that provides for the management of biodiversity over the 22 year life of the mine. The mine will clear 1664 hectares of forest which provides habitat for species threatened with extinction including bats, birds, koalas, reptiles and forest owls. An area of 544 ha of this forest is a critically endangered ecological community. It is listed nationally as critically endangered and therefore it is facing an extremely high risk of extinction in the wild in the immediate future.
Shortly before a judgment was due on 12 June, following the hearing of the injunction application, Whitehaven gave an undertaking to the Court to halt the clearing until a judgment following a full hearing on the legality of the BMP, which was expected in early September.
Whitehaven subsequently lodged a new Biodiversity Management Plan (BMP). The Department of Planning and the Environment later approved the BMP with conditions which restricted clearing in the Leard forest to between February 15 and April 30 each year. These conditions stop Whitehaven Coal from clearing the forest in winter and spring, when native animals are at their most vulnerable. This was the objective of the MCCC’s legal action which was therefore discontinued.
EDO NSW and its client Maules Creek Community Council Inc and its many supporters from far and wide wish to sincerely thank Mr Howard SC and Mr Johnson for their able assistance in this matter.
Northern Inland Council for the Environment v Minister for Environment (Maules Creek and Boggabri Mine Cases)
EDO NSW acted for the Northern Inland Council for the Environment in challenging the Commonwealth approvals for two coal mines in the Leard State Forest near Boggabri in north-western NSW.
On December 20, 2013, the Federal Court dismissed both challenges, one for the Maules Creek mine, owned by Whitehaven Coal, the other for an expansion of the existing Boggabri Mine, owned by Idemitsu.
The projects will result in the clearing of 626 hectares of the critically endangered Box Gum Woodland and 2315ha of habitat for the endangered Swift Parrot, the endangered Regent Honeyeater, the vulnerable Greater Long-eared Bat, and the endangered climbing plant species Tylophera linearis.
The group argued that the Minister took into account matters that he was not permitted by law to take into account. It argued that the Minister had taken into account the leaking of commercially sensitive information about the projects by the NSW State Government and that information materially impacted on his decision to approve the coal mine projects.
The two approvals relied heavily on offsets to compensate for significant impacts on endangered communities and threatened species. Offsets are parcels of land, outside the project area, which are intended to compensate for the loss habitat for endangered species in the project area.
The group also argued that the Minister made a further legal error by not requiring independent verification of the offsets before the approval was granted, rendering the offset conditions imposed uncertain. It also argued that the Minister was required under the law to take into account approved conservation advices for listed threatened species and ecological communities, and he did not do so.
The Federal Court found that there was no legal error in the decision-making process. The Court found that the Federal Environment Minister’s decision was not materially impacted by the taking into account of the irrelevant material and that he had the power to approve the clearing of the Leard State Forest before biodiversity offsets have been established. The judge noted “this would undoubtedly be undesirable from the perspective of the environmental protection and preservation...” but was nevertheless permitted by the law.
EDO NSW is grateful for the assistance of barristers Sarah Pritchard SC and Craig Lenehan who acted as counsel for the Northern Inland Council for the Environment.
Peter Gray & Naomi Hodgson v Macquarie Generation
On behalf of Peter Gray and Naomi Hodgson, EDO NSW commenced civil enforcement proceedings in the Land and Environment Court against Macquarie Generation. The proceedings sought a declaration that the State-owned company has been wilfully or negligently disposing of waste at their Bayswater Power Station by emitting carbon dioxide into the atmosphere in a manner that has harmed or is likely to harm the environment in contravention of the Protection of the Environment Operations Act 1997 (NSW).
Mr Gray and Ms Hodgson also sought an injunction requiring Macquarie Generation to immediately cease disposing of waste through the emission of carbon dioxide into the atmosphere.
In carrying out its electricity generation activities, Macquarie Generation has been issued with an environment protection licence which licences the company to emit certain waste but not carbon dioxide.
Bayswater Power Station, located in the Upper Hunter Valley, has the highest carbon dioxide emissions of all power stations in NSW.
Macquarie Generation filed a motion to have the matter dismissed. Justice Pain found that the Applicants' argument that Macquarie Generation is not authorised to emit any carbon dioxide at all was unlikely to succeed and dismissed that part of their case.
However, Justice Pain did not dismiss the Applicants' secondary argument. This was that even if Macquarie Generation has an implied authority to emit some amount of carbon dioxide in generating electricity, that authority is limited to an amount which has reasonable regard and care for people and the environment. This part of the Applicants' case was permitted to proceed to trial.
In 2011 Macquarie Generation appealed to the NSW Court Appeal arguing that Justice Pain was wrong in finding that Macquarie Generation’s licence to pollute contains an implied limitation on how much carbon dioxide can be released.
The matter was heard by the Court of Appeal on 13 September 2011. Sadly, Peter Gray passed away before the hearing could take place. The Court of Appeal ordered that Ms Hodgson could continue the proceedings in her name alone.
Judgment was handed down on 22 December 2011.
The Court of Appeal held that Macquarie Generation’s licence to pollute did not contain the implied (or common law) limitation on the amount of carbon dioxide that could be released. The licence was therefore a complete defence to the argument that Macquarie Generation were wilfully or negligently disposing of waste, and they therefore found that the case had no reasonable prospects of success.
The Court also found that the licence didn’t contain a limit on how much coal could be consumed at the power station.
EDO NSW is grateful to barristers Ian Lloyd QC and Mr Ashley Stafford who appeared before the Court of Appeal on behalf of Mr Gray and Ms Hodgson, and barristers Craig Lenehan and Lisa Doust who assisted with the earlier cases.
Judgment - Costs
Judgment - Amended points of claim
Rivers SOS Inc v Minister for Planning & Helensburgh Coal Pty Ltd
These proceedings were bought by EDO NSW on behalf of Rivers SOS against the Minister for Planning and Helensburgh Coal Pty Limited. The appeal was against the Minister's decision to approve the Metropolitan Coal Project under Part 3A of the Environmental Planning and Assessment Act 1979. The Land and Environment Court upheld the approval on 16 December 2009. The approval allows for an expansion of the Metropolitan Coal mine, including extraction of up to 3.2 million tonnes per annum of coal over 23 years using longwall mining techniques directly beneath the Woronora Reservoir.
The Minister had directed the Planning Assessment Commission (PAC) to consider submissions, hold a public hearing and report on the potential subsidence impacts of the Metropolitan Coal Project on the environment. After the public hearing and submission process, the mining company submitted a significantly different mine plan for consideration. The PAC then considered and reported to the Minister on the revised mine plan, which was ultimately approved by the Minister without further community or agency input on 22 June 2008.
Justice Preston held that the PAC process was not flawed, there was no obligation on the PAC to hold a further public hearing on the revised mine plan and there was no breach of natural justice.
In relation to the four other grounds appeal, two grounds related to the Minister's condition making and delegation powers under Part 3A. Preston CJ upheld the two conditions at issue, which allowed for to the undermining of three swamps and provided for offset and remediation requirements. The Court rejected the Applicant's submissions that the Minister had not complied with the requirements of s 47(3) of the Sydney Water Catchment Management Act 1998, holding that there is only one notice required under s47 and that such notice was given to the Sydney Catchment Authority. The Court also rejected the Applicant's submissions in relation to the application of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) under Part 3A, holding that the Mining SEPP did not apply to the Minister's exercise of power under s75J(1) of the Environmental Planning and Assessment Act 1979 to approve the project.
EDO NSW would like to acknowledge and thank Tim Robertson SC and Jason Lazarus for their appearances and contribution to the case. We would also like to acknowledge the contribution of Adrian Brown of Denver, United States of America, who was retained as an expert witness in the proceedings and attended the hearing.
Southern Highlands Coal Action Group v Minister For Planning & Infrastructure & Boral Cement Limited
Approval overturned of coal mine expansion in Sydney’s water catchment
The Land and Environment Court has refused, with the consent of the parties, the State Government’s approval of an expansion of Boral Cement’s coal mine near Berrima in Sydney’s drinking water catchment.
EDO NSW, representing the Southern Highlands Coal Action Group, appeared before the Court and obtained final orders by consent with Boral, for the refusal of the NSW Government’s 2012 approval of the Berrima (Medway) Colliery.
The case had been due to go back to the NSW Land and Environment Court for a retrial of the original challenge to the project’s approval by the community group. However, Boral announced on July 1, 2014, that it would be permanently closing the Berrima (Medway) Colliery.
The original approval would have given Boral the authority to double its coal output from the Berrima Colliery to 440,000 tonnes per year, and continue its operations until 2020. The community group successfully appealed the decision because of concerns about the impacts on groundwater and biodiversity, and the Wingecarribee River in Sydney's drinking water catchment. Read the judgment
The final orders granted by the Court reinstates the community group’s original successful challenge to the mine expansion and bring the case to a close. The parties and the Senior Commissioner agreed that there was no utility in continuing the court case as Boral has indicated the mine will close.
Read more about the original case and the appeal on our website. EDO NSW is grateful to barristers Mr Nick Eastman and Ms Natasha Hammond-Deakin (former EDO NSW Senior Solicitor) for their assistance with this matter.