Wilpinjong case note EDO NSW

Case note: Wollar Progress Association Inc v Wilpinjong Coal Pty Ltd

In August 2017, the Wollar Progress Association (WPA) commenced judicial review proceedings in the Land and Environment Court of New South Wales (LEC) to challenge the decision of the then New South Wales Planning Assessment Commission (PAC) (since replaced by the Independent Planning Commission) to approve the extension of the Wilpinjong open-cut coal mine near Wollar.

The decision1 was the first time the LEC considered whether, and to what extent, cl 14 of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) (Mining SEPP) requires a consent authority to consider an assessment of greenhouse gas emissions, including downstream emissions, when determining a development application for a mining project, including by having regard to any applicable state or national policies, programs or guidelines concerning greenhouse gas emissions.

On 19 June 2018, the LEC dismissed WPA’s application and upheld the PAC’s decision to approve the extension.The judgment demonstrates that broad aspirational policies regarding greenhouse gas emissions reduction targets do not have any meaningful application to the assessment of mining projects in New South Wales.

By Meg Lamb, Solicitor, and Brendan Dobbie, Acting Principal Solicitor, EDO NSW

Originally published in Australian Environment Review, Vol 33 No 5&6, November 2018

Background

The Wilpinjong Mine is an open-cut coal mine located approximately 40km northeast of Mudgee, near the village of Wollar, about 310km northwest of Sydney, and has been in operation since 2006. It is owned and operated by Wilpinjong Coal Pty Ltd (the first respondent), a wholly owned subsidiary of Peabody Energy Australia Pty Ltd. The 28 km open-cut coal mine lies between Goulburn River National Park and Munghorn Gap Nature Reserve.

On 24 April 2017, the PAC, as delegate of the Minister for Planning (the second respondent), granted development consent to the first respondent for the Wilpinjong Mine Extension Project (the Project) pursuant to former s 89E of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The consent allowed for both the spatial and temporal expansion of the mine — including the continued extraction of up to 16 million tonnes of run-of-mine coal per year, and the extension of the mine’s approved life to 31 December 2033. The expanded operations would continue to supply domestic users under existing contracts at AGL Macquarie’s Bayswater and Liddell Power Stations until 2026. This meant that a substantial proportion of the coal mined at the Project was intended to be burned at power stations in New South Wales.

WPA commenced proceedings in the LEC seeking a declaration that the consent was invalid, an order quashing the decision of the second respondent to grant the consent, and an order restraining the first respondent from acting on the consent.

The second respondent filed a submitting appearance and took no active part in the proceedings.

Grounds WPA challenged the PAC’s decision to grant development consent on three main grounds:

  1. The PAC failed to consider a mandatory relevant consideration, being an assessment of the greenhouse gas emissions (including downstream emissions) of the Project which was required to be considered having regard to any applicable state or national policies, programs or guidelines concerning greenhouse gas emissions, as required by cl 14(2) of the Mining SEPP.
  2. The PAC failed to consider the likely impacts of the whole of the Project the subject of the application before it, as required by s 79C(1) of the EPA Act.
  3. The PAC constituted for the purposes of determining the development application for the Project was improperly constituted.

Following commencement of the proceedings, the Parliament of New South Wales, on 23 November 2017, assented to amendments to the EPA Act, which rendered the third ground raised by WPA futile. As such, the proceedings turned on grounds one and two, although ground two was also substantially impacted by the amendments.

The Mining SEPP

Clause 14(2) of the Mining SEPP required the PAC to consider an assessment of the greenhouse gas emissions (including downstream emissions) of the Project, and to do so having regard to any applicable state or national policies, programs or guidelines concerning greenhouse gas emissions. WPA argued that the PAC failed to consider the matters required by cl 14(2) of the Mining SEPP (which applied without limiting the obligation in cl 14(1) to consider whether or not consent should be issued subject to conditions aimed at ensuring that greenhouse gas emissions were minimised to the greatest extent practicable).

According to WPA, the state or national policies, programs or guidelines that applied for the purposes of cl 14(2) were Australia’s 2030 target of a 26%–28% reduction on 2005 emissions under the Paris Agreement, and New South Wales’s long-term aspirational objective of net-zero emissions by 2050 under the 2016 Climate Change Policy Framework (NSW CCPF). WPA submitted that the PAC’s written reasons for its decision disclosed no note or record of the PAC’s consideration of an assessment of greenhouse gas emissions (including downstream emissions) of the Project, including by reference to any applicable state or national policies, programs or guidelines (ie, the Paris Agreement and NSW CCPF). WPA further contended that the documents to which the PAC referred in making its decision contained no assessment of the downstream greenhouse gas emissions of the Project of the kind required by the Mining SEPP.

WPA also argued that the PAC’s determination report of 24 April 2017 suggested that, to the extent greenhouse gas emissions of the Project were taken into account, they were treated as simply one of a number of areas of public concern to be weighed against the socio-economic benefits of the Project. This argument was supported by the contention that the only reference to greenhouse gas emissions in the determination report was contained in the summary of concerns raised by the public at public meetings. As a result, WPA asserted that the court could be satisfied that the PAC had misunderstood the task required of it, in that it determined the development application without considering an assessment of the greenhouse gas emissions of the Project (including downstream emissions) having regard to the Paris Agreement and the NSW CCPF.

As a result, WPA argued that the PAC failed to consider a mandatory relevant consideration and the decision to grant development consent was accordingly invalid and of no effect.

In response, the first respondent submitted that WPA has misconstrued cl 14(2) of the Mining SEPP by overstating the extent to which the PAC was obliged to consider an assessment of greenhouse gas emissions. It argued that cl 14(2) did not require the type of assessment suggested by WPA, which it characterised as involving consideration of broad aspirational policy targets for overall greenhouse gas emissions over the coming decades. It further argued that the Paris Agreement and NSW CCPF were not applicable for the purposes of cl 14(2) because, fundamentally, they raised policy considerations, and could not meaningfully guide the PAC’s task of determining the development application. The first respondent also asserted that, even if the court accepted that those policies were relevant and therefore had to be considered, WPA had failed to discharge its onus to establish that the PAC had failed to consider an assessment of greenhouse gas emissions. Instead, it argued that the PAC did, in fact, have before it an assessment of the greenhouse gas emissions for the Project of the kind required by cl 14(2) of the Mining SEPP, and that WPA’s critique involved an inappropriate parsing of the PAC’s decision.

WPA also submitted that the PAC had not adequately considered the biodiversity impacts of the Project because it failed to consider the likely impacts of the whole of the Project. As the development consent was to replace the existing consent for the Wilpinjong Mine, WPA argued that the PAC was required — but failed — to consider the impact of the clearing of endangered ecological communities, which had been approved under the original consent, but had not yet been carried out, in conjunction with the clearing proposed to occur as part of the mine extension.

However, having regard to the amendments to the EPA Act on 23 November 2017, the LEC agreed with the first respondent that the PAC’s duty to consider the likely impacts of the Project on the environment, pursuant to former s 79C(1)(b), did not extend to an assessment of the Project’s impact on biodiversity, which had already been the subject of consideration in the original consent. Decision

The LEC ultimately found for the first respondent on each ground of WPA’s challenge and dismissed the application, reserving the question of costs. With respect to ground one, the LEC accepted the first respondent’s submissions that the Paris Agreement and NSW CCPF did not provide applicable guidance to the PAC in assessing the development application, and that the PAC had sufficient material before it to satisfy the requirement to consider the greenhouse gas emissions of the Project. Relevantly, in obiter, Sheahan J appeared to accept the first respondent’s contention that cl 14(2) of the Mining SEPP did not apply generally to the determination of development applications for mining projects, but instead worked in conjunction with cl 14(1) such that its application was limited to the consideration of whether a development consent should be issued subject to conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable.

Conclusion

The judgment demonstrates that, at present, aspirational climate change policies do not have any practical application to the assessment of mining projects in New South Wales. However, given the broader community perception that governments around the world are failing to take direct action on climate change, it is likely that further challenges of this kind will arise in the future, which may yield different results.

Footnotes

  1. Wollar Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92; BC201805282