The case of Gloucester Resources Limited v Minister for Planning  NSWLEC 7 concerned a Class 1 merit appeal to the New South Wales Land and Environment Court following the Planning and Assessment Commission's (Commission) refusal to grant consent to an open cut mine at Rocky Hill within the Gloucester Valley. The Land and Environment Court's Chief Judge also determined that the project should be refused, albeit on more expansive grounds to the Commission, including climate change.
The decision of the Commission
On 18 December 2012, Gloucester Resources Limited (Applicant) applied to the Minister for Planning for development consent for the Rocky Hill Coal Project, for the purposes of coal mining as a state significant development. On 23 October 2017, after receiving 2,308 submissions (90%) of objection from individual members of the public and special interest groups, the matter was referred to the Commission. The application was refused at the Commission due to inconsistency with the zone objectives, visual impacts, and the public interest.
On 19 December 2017, the Applicant then filed a Class 1 merit appeal to the New South Wales Land and Environment Court, something enabled by the Minister for Planning (Minister) not requiring the Commission to hold a public hearing. The Minister was the first respondent to the appeal and Groundswell Gloucester Inc (Submitter), a community group opposed to the Rocky Hill Coal Project, was joined as the second respondent to the appeal.
The judgment is bookended by comments that explain why the mine was refused.
At paragraph 8 the Court states:
"The mine will have significant adverse impacts on the visual amenity and rural and scenic character of the valley, significant adverse social impacts on the community and particular demographic groups in the area, and significant impacts on the existing, approved and likely preferred uses of land in the vicinity of the mine. The construction and operation of the mine, and the transportation and combustion of the coal from the mine, will result in the emission of greenhouse gases, which will contribute to climate change. These are direct and indirect impacts of the mine. The costs of this open cut coal mine, exploiting the coal resource at this location in a scenic valley close to town, exceed the benefits of the mine, which are primarily economic and social."
In the last paragraph of the judgment, the Court states:
"In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused."
The 689 paragraphs nestled between these two statements provide the Court's reasoning process for the decision.
The first part of the judgment addresses the "wrong place" arguments, which involved the Court weighing some acknowledged public benefits (albeit economic benefits that were found to be overstated) against the adverse impacts in the following three areas:
visual (contrast with the surrounding environment, and night lights);
amenity (noise and dust); and
social (composition, cohesion and character of the community, the sense of place, the use of road infrastructure, the impact on Aboriginal culture and connection to Country and impact on heritage-scenic quality, the social impacts on health and wellbeing, the reasonableness of the fears and aspirations of the community, and the distributive inequity that would be caused within the community).
The second part of the judgment addresses climate change. The competing arguments of the Applicant, the Minister and the objector were analysed, which was followed by the Court's reasoning that the greenhouse gas emissions (GHG emissions) of the project support the refusal of the application. This finding rested on the following other conclusions:
- Both direct and indirect GHG emissions should be considered, requiring analysis of scope 1, 2 and 3 GHG emissions. Various New South Wales, Queensland and American decisions were considered.
- All GHG emissions contribute to climate change. In this regard, the scope 1, 2, and 3 GHG emissions over the project's life were found to be 37.8Mt CO2-e - a sizeable individual source, but that "it mattered not" that this aggregate represented a small fraction of total GHG emissions since the "problem of climate change needs to be addressed by multiple local actions to mitigate emissions and remove GHGs by sinks" (at ).
- The project's GHG emissions will contribute to climate change. The Court held that there was a causal link between the project's cumulative GHG emissions and climate change and its consequences, and there was no evidence of any action that would "net out" the project's GHG emissions. The Court also considered it irrelevant that greater GHG emission reductions could be achieved from other sources at lower cost by other persons or bodies, and that the market substitution argument had an apparent "logical flaw" having also been rejected in American caselaw. The Court also held that it was not necessary to approve the project to maintain steel production, for which the coal being produced would be used.
- The project's poor environmental and social performance in relative terms.
At 533 of the judgment, the Court refers to the function of a consent authority (which is relevant given the the Court is metaphorically standing in the shoes of the consent authority in this matter) in weighing up these factors. The Court stated:
"As Mahoney JA observed in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279, the function of a consent authority:
“…is, in the exercise of discretionary powers, to take into consideration the relevant considerations, to weigh them one against the other, and to determine what in the light of those considerations, should be done. Ordinarily, it would not be right for such a body to conclude that the effect of the relevant considerations is that one thing should be done and yet, without more, to do another. The grant of a discretion is the grant of the authority to do what the authority sees as the discretionary considerations to warrant being done."
Where to from here?
While much of the commentary to date has related to the climate change reasons for the refusal, it is important to acknowledge that the project was found to have warranted refusal for the unacceptable planning, visual and social impacts alone. These "wrong place" type arguments comprise the more orthodox grounds for the refusal of development applications and need to continue to be carefully evaluated, but the decision now places climate change on the list of issues that must be grappled with.
While each development is assessed on a case-by-case basis, and the merits of each application for fossil fuel development must properly be evaluated, the Court's "wrong time" finding has significant repercussions for other projects in New South Wales involving or enabling a "material source of GHG emission". If such a project (irrespective of whether it related to a new or existing development) requires a development application or modification application, proponents' consent authorities as well as financiers need to carefully grapple with the reasoning processes adopted by the Court.
The approval pathway for proponents should be mapped out, and supporting documents carefully prepared and structured to respond to all the issues, including downstream GHG emissions.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.