Rivers SOS Inc v Minister for Planning & Helensburgh Coal Pty Ltd - EDO NSW

Rivers SOS Inc v Minister for Planning & Helensburgh Coal Pty Ltd

December 2009

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.

Applicant's further amended points of claim


Case Summary Judgment