The Facts
Coal mine in Upper Hunter approved for 21 years
In 2006, a company began operating an open cut coal mine in the Upper Hunter, NSW, under a consent granted by the state government.
The approved life of the mine was 21 years, until February 2027.
In January 2016, the company lodged a development application, seeking consent to expand the area of the mine and extend its operations by seven years, until December 2033.
Under the proposed expansion, the mine’s output until 2027 would continue to be predominantly thermal coal for domestic sale. From 2027 to 2033, the mine would produce only high ash thermal coal for sale on the export market.
Developments in government’s climate policy
In November 2016, Australia ratified the Paris Agreement and adopted 2005 emissions as a baseline, with a target reduction of 26-28% by 2030.
Later that month, NSW published the NSW Climate Change Policy Framework (NSW CCPF) with the “aspirational long-term objective” of net zero emissions by 2050.
Local association raises concerns over project and commences legal action
In December 2016, a local not-for-profit association raised concerns about the project’s inconsistencies with government targets to reduce greenhouse gas emissions.
In April 2017, the NSW government’s Planning Assessment Commission (PAC) published its determination report, granting consent for the company’s project to expand the mine and extend its operations by seven years.
In August 2017, the association commenced proceedings against the company and the PAC in the Land and Environment Court. The association sought to restrain the company from undertaking any development in reliance on the consent and to overturn the PAC’s decision to grant the consent.
Expert commentary on the court's decision
Land and Environment Court rejects claim by local association
In the case Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92, the Land and Environment Court ordered that Wollar Progress Association’s case against Wilpinjong Coal Pty Ltd and the Planning Assessment Commission be dismissed.
Court finds Paris Agreement and NSW CCPF not applicable policies requiring consideration
Clause 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries 2007 provides that:
The court agreed with Wilpinjong Coal that the Paris Agreement and NSW CCPF were not “applicable” policies within the meaning of clause 14(2), as the PAC could not use them to quantifiably assess the mining project’s greenhouse gas emissions.
The court also agreed with Wilpinjong Coal’s argument that, even if the Paris Agreement and the NSW CCPF were held to be applicable policies, the PAC had given them adequate consideration.
Court finds PAC satisfied requirement to consider assessment of greenhouse gas emissions
The court found that the PAC had in fact considered an assessment of the greenhouse gas emissions of the development, and so had satisfied the requirements of clause 14(2).
In the court’s view, the detailed evidence before it, which had also been before the PAC, was an assessment of greenhouse gas emissions. Further, the PAC had engaged in the requisite consideration of that assessment.
In coming to this conclusion, the court referred to relevant caselaw, including Malek Fahd Islamic School Ltd v Minister for Education and Training. In that case, the court said that:
In Malek Fahd, the court also referred to Minister for Immigration and Multicultural Affairs v Yusuf, in which it was said that where a decision-maker volunteered to make statements, “caution is required in drawing adverse inferences from omissions”.
The court in Malek Fahd also drew attention to Carrascalao v Minister for Immigration and Border Protection as support for the principle that when a decision-maker is required by its statute to consider mandatory criteria, the decision-maker “must engage in an active intellectual process directed at that… criteria”.
In considering Wilpinjong Coal’s development application, the PAC was not required by law to state the reasons for its decision, but had voluntarily done so. The court concluded that:
Greenhouse gas emissions increasingly seen as relevant consideration
Although in this case, the court was not persuaded that the Paris Agreement and the NSW CCPF were applicable in assessing Wilpinjong’s mining development application, greenhouse gas emissions are increasingly seen as being relevant in consideration of environmentally significant development approvals.
In Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (“Rocky Hill”), objectors of the mine argued that the development was not in the public interest (as required by section 4.15(1)(e) of the Environmental Planning and Assessment Act) for a multitude of reasons, including being “contrary to the principles of ecologically sustainable development because the direct and indirect greenhouse gas emissions of the mine will contribute to climate change”.
The judge agreed and held that the development application for the mine should be refused.
In doing so, he rejected the market substitution argument, an argument utilised in the Wollar Progress Association case. This argument says that if an Australian mine doesn’t mine the coal, a mine somewhere else will. The result is that the same amount of coal gets burned, but Australia loses out economically.
In rejecting the market substitution argument, the judge said that “Australia has a responsibility, including under the Climate Change Convention, the Kyoto Protocol and the Paris Agreement, to take the lead in taking mitigation measures to reduce GHG emissions”.
Growing importance of greenhouse gas emissions influences approval decisions
The Rocky Hill case has had a significant influence on the PAC. Shortly after that case, the PAC refused a 5-year extension to a coal mine in Dartbrook and the developmental approval for a large coal mine project in Bylong for similar reasons as those applied in Rocky Hill.
It is likely that if Wollar Progress Association had framed its argument as a public interest matter, like the objectors in the Rocky Hill case did, the claim would have had greater prospects of success.
On the other hand, it may still have been difficult for the association to prove its case, since the Wilpinjong Coal project had undergone multiple environmental impact assessments, modifications and offset strategies.
This shift in the PAC’s approach suggests that those looking to halt the development of a mine or aluminium smelter being planned for their neighbourhood should bring evidence that the proposed development is not in line with principles of ecological sustainability.
For more information, please see the following articles.
For more information, please see Impacts of climate change on our children – is there a duty of care? and Drought, flood, bushfire and insurance risk – the impact of climate change on property transactions.