Mullaley Gas and Pipeline Accord Inc (MGPA) (Mullaley Gas INC9894330) v Santos NSW (Eastern) Pty Ltd; Independent Planning Commission [2021] NSWLEC 24

Land and Environment Court New South Wales

Medium Neutral Citation: Mullaley Gas and Pipeline Accord Inc (MGPA) (Mullaley Gas INC9894330) v Santos NSW (Eastern) Pty Ltd; Independent Planning Commission [2021] NSWLEC 24 Hearing dates: 12 March 2021 Date of orders: 22 March 2021 Decision date: 22 March 2021 Jurisdiction: Class 4 Before: Pain J Decision: See [23] of judgment Catchwords: PRACTICE AND PROCEDURE – leave to rely on limited expert evidence in judicial review proceedings granted Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 4.15 Uniform Civil Procedure Rules 2005 rr 31.19, 59.7 Cases Cited: Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217 Category: Procedural rulings Parties: Mullaley Gas and Pipeline Accord Inc (MGPA) (INC9894330) (Applicant) Santos NSW (Eastern) Pty Ltd (First Respondent) Independent Planning Commission (Second Respondent) Representation: COUNSEL: S Chordia (Applicant) C Trahanas (First Respondent) Submitting (Second Respondent)

SOLICITORS: Environmental Defender's Office (Applicant) Corrs Chambers Westgarth (First Respondent) NSW Department of Planning, Industry and Environment (Second Respondent) File Number(s): 20/363113

Judgment 1. The Applicant has commenced judicial review proceedings challenging on numerous grounds the approval of the state significant development application of the First Respondent Santos NSW (Eastern) Pty Ltd for the Narrabri Gas Project (the Project) determined by the Independent Planning Commission (IPC), the Second Respondent. The IPC has filed a submitting appearance. The Applicant seeks leave under r 31.19 of the Uniform Civil Procedure Rules 2005 (UCPR) to rely on expert evidence of climate scientist Dr Sackett. The Applicant also seeks an order under r 59.7 of the UCPR that this evidence be adduced orally. 2. Expert evidence is not generally admissible in judicial review proceedings, it not being material before the decision-maker. 3. Dr Sackett provided two reports to the IPC and made oral submissions to the IPC during public hearings. Her two reports and a transcript of her evidence are attached to an affidavit of Mr Dobbie solicitor dated 11 March 2021 affirmed in support of this application. 4. Following amendment of what is sought in the course of the hearing, the expert evidence sought to be adduced is limited in scope, being the elucidation of several concepts otherwise referred to in Dr Sackett's reports before the IPC. These are as follows: 1. the carbon budget approach; 2. apportionment of carbon budgets between different jurisdictions; 3. emissions reduction trajectories / scenarios relevant to: 1. certain levels of global warming; and 2. global warming temperature targets and emissions reduction targets adopted internationally and within Australia and New South Wales (NSW); 1. the production gap; 2. the use of the terms "scope 1, 2 and 3 greenhouse gas (GHG) emissions" in the context of the Project, NSW and Australia; 3. regional "accounting" of emissions; 4. hothouse earth; 5. forest fire index; 6. the hydrological cycle; 7. Earth System Feedbacks; 8. Tipping Points; and 9. the lag between the release of GHG emissions and related environmental impacts. 1. The presentation of arguments on Grounds 1, 3 and 4 in the amended summons dated 12 March 2021 are said to require this evidence.