NSWCA Finds Planning Approval For Mine Extension Invalid

Thursday 3 August 2017 @ 11.58 a.m. | Corporate & Regulatory

An environmental group has successfully challenged the NSW Government’s approval of an extension of underground coal mining operations at the Springvale Mine.  In 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191, the New South Wales Court of Appeal overturned an earlier decision by the Land and Environment Court which had found the approval process to be valid.  The NSW Court of Appeal will now hear further submissions before making orders about whether or not to close the mine, or take other action.

A spokesman for the 4nature environmental organisation told ABC News:

“It's very good for people in Sydney because it's protecting drinking water and protecting the national park… There was an enormous amount of mine wastewater going into the Cox's River and hopefully that will be reduced or stopped all together."

A spokesperson for Centennial Coal, who operate the mine, said the decision was disappointing:

“Although we were hoping for the best, we had planned for the worst… We have a number of strategies in place to ensure that we can continue operating the mine.  This is really important because Springvale Mine employs over 300 local people in the Lithgow community.”

Background

The respondents to the case, Centennial Springvale, sought approval for an extension of their existing mine, in which they would expand the mine to extract a further 4.5 million tonnes of coal per year up until 31 December 2028.  As the project was deemed to be State significant development, and had received a number of objections, the Minister for Planning’s approval powers were delegated to the Planning Assessment Commission (“the Commission”).  The proposal was referred to the Commission for review on 27 April 2015.  After holding a number of public hearings, the Commission consented to the application on 21 September 2015.

The Decision

The appellants in the case, 4nature, challenged the validity of the consent by the Commission.  They argued that:

“in granting consent the Commission had not been satisfied of an essential precondition to the grant, namely that “the carrying out of the proposed development would have a neutral or beneficial effect on water quality”, the proposal involving the discharge of water within the Sydney drinking water catchment.” [at 9]

The Court of Appeal considered two key questions:

(1)   In determining whether the proposed development would have a neutral or beneficial effect on water quality, what is the nature of the comparison required by cl 10(1) of the Catchment SEPP?

(2)   Was the approach taken by the Commission valid, and did it therefore achieve the requisite state of satisfaction?

The Court of Appeal unanimously overturned the initial decision by the Land and Environment Court, finding that the grant of consent by the Planning Assessment Commission was invalid.

Justice Basten found that the Commission had relied on the Department of Environment and Planning’s position that:

“the current permissible level of discharge from the Springvale mine provided the baseline against which the proposed development was to be assessed” [at 81].

His Honour wrote that:

“Reliance by the Commission on the Department’s approach was erroneous for two reasons. First, the baseline calculation of water quality pursuant to cl 10(1) must be undertaken by reference to actual, and not hypothetical, water quality. The salinity of water in the Upper Coxs River depended upon (relevantly) the actual volume and salinity of the water discharged from the Springvale mine at LDP 9. Secondly, it was no doubt because the Department treated the relevant level as the maximum permitted under the EPL (which was not time limited) that the Department did not consider what might happen on the ground when the mining operation terminated. Apart from the material in Dr Bell’s report which suggested discharges thereafter would be minimal, the Commission had no material to support a finding that even current discharges would continue absent mining, nor was it invited to so find. Further, it was not invited to consider whether mining would continue, nor for how long and on what conditions.” [at 82]

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