Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110

Land and Environment Court New South Wales

Medium Neutral Citation: Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 Hearing dates: 30 and 31 August and 1 September 2021 Date of orders: 18 October 2021 Decision date: 18 October 2021 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court orders: (1) The summons is dismissed. (2) If the first respondent seeks an order that the applicant pay the first respondent's costs of the proceedings, the first respondent is to file and serve written submissions on costs by 1 November 2021. (3) If the first respondent does seek a costs order under order (2), the applicant is to file and serve written submissions on costs by 15 November 2021. (4) If either party seeks an oral hearing on the question of costs, the party is to request an oral hearing in its written submissions filed under order (2) or (3). (5) The parties have liberty to restore the matter for directions on 2 days' notice. Catchwords: JUDICIAL REVIEW – decision to grant development consent to gas project – greenhouse gas (GHG) emissions of project – comparison of GHG emissions advantage of gas over coal – whether misconstruction or failure to consider impacts of project – statutory requirement to consider imposing condition of consent minimising GHG emissions – whether GHG emissions include downstream emissions – condition not imposed as downstream emissions outside direct control of proponent – whether misconstruction of statutory requirement – whether decision legally unreasonable – project gas to be transported to market by pipeline – pipeline not part of gas project – whether impacts of pipeline are impacts of gas project – whether failure to consider impacts of gas project Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 4.17, 4.36, 4.38, 4.40 Land and Environment Court Rules 2007 r 4.2(1) State Environmental Planning Policy (State and Regional Development) 2011 Sch 1 cl 6 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 14 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125 at 134; [1994] JPL 32 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council (1984) SC (HL) 58 at 67; [1984] JPL 590 KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 Minister for Environment and Heritage v Queensland Conservation Council (2004) 139 FCR 24; [2004] FCAFC 190 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 Reference re Greenhouse Gas Pollution Pricing Act [2021] SCC 11 Taralga Landscape Guardians v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59 Category: Principal judgment Parties: Mullaley Gas and Pipeline Accord Inc (Applicant) Santos NSW (Eastern) Pty Ltd (First Respondent) Independent Planning Commissioner (Second Respondent) Representation: Counsel: Ms S Pritchard SC with Mr B Kaplan (Applicant) Mr R Lancaster SC with Ms C Trahanas (First Respondent) Submitting appearance (Second Respondent)