Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and NSW Minister for Planning - EDO NSW

Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and NSW Minister for Planning

February 2016

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.

Read the judgment.

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