Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31

Land and Environment Court New South Wales

Medium Neutral Citation: Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31 Hearing dates: 12 to 14 November 2018 Date of orders: 22 March 2019 Decision date: 22 March 2019 Jurisdiction: Class 4 Before: Moore J Decision: (1) The summons is dismissed; (2) The hearing listed for 4 April is vacated; and (3) Costs are reserved. Catchwords: JUDICIAL REVIEW - development consent issued for Wallarah 2 Coal Project - development consent issued by Planning Assessment Commission (PAC) Panel - Applicant challenges the validity of development consent on 10 pleaded grounds JUDICIAL REVIEW - Grounds 1 to 3 together - whether consent invalid by reason of failure to consider downstream greenhouse gas emissions - whether consent invalid by reason of failure to consider cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 - whether consent invalid by reason of failure to consider principles of ecologically sustainable development - adequacy of PAC reasons concerning greenhouse gas emissions - adequacy of PAC consideration of ecologically sustainable development concerning greenhouse gas emissions - PAC's Determination Report discloses proper consideration of downstream greenhouse gas emissions - no obligation on the PAC to impose conditions on the project to address downstream greenhouse gas emissions - no failure to give adequate consideration to ecologically sustainable development - Grounds 1 to 3 rejected JUDICIAL REVIEW - alleged failure to consider the impacts of a future Central Coast water supply pipeline (the pipeline) - necessity for the pipeline would arise to provide compensatory water to the Central Coast water supply only after mining progresses to Longwall 6N and beyond - development consent granted by the PAC does not approve mining of Longwall 6N and beyond - route of the pipeline (if required) not certain, although two options identified over land owned by the mine or by public authorities - other potential pipeline routes possible over private land but not identified - not possible to identify with any precision any pipeline route capable of being assessed due to the uncertainty of either the necessity for such a pipeline or the location of a preferred route - separate future application required to be made for a pipeline if mining is proposed to continue into Longwall 6N and beyond - condition valid - Ground 4 rejected JUDICIAL REVIEW - failure to consider flood impacts - ground pleaded on four bases, two of which were abandoned - alleged failure to consider risks to the livelihoods of private property owners or of such owners being forced to sell their properties - degree of particularity to which the PAC was required to assess issues - matters remaining pressed of too greater degree of particularity to be considered beyond the extent to which the PAC addressed flooding impacts - Ground 5 rejected JUDICIAL REVIEW - error of fact in relation to flooding impacts - PAC comment that development proponent had agreed to acquire flood-affected properties where remediation or amelioration was not possible - PAC misled by assertion to this effect in departmental project assessment report - flooding impacts condition of consent addresses basis for landholders to seek compensation for flooding impacts but does not impose any requirement concerning property acquisition - error of fact did not mandate the PAC to address the erroneous finding in the flooding impacts condition of consent - flooding impacts condition of consent delegates to the Secretary resolution of any issues which might arise concerning flooding impact compensation - flooding impact compensation issues will arise to be considered on the particular facts and circumstances of any specific compensation claim pursuant to the condition - no uncertainty invalidating the condition as a consequence - Ground 6 rejected JUDICIAL REVIEW - Grounds 7 and 8 not pressed JUDICIAL REVIEW - alleged failure to consider the risk to private water supplies - two elements pleaded in support of the ground abandoned - alleged failure by the PAC to consider the two bases remained pressed - allegation that consideration of the matters had been impermissibly deferred to determination by the Secretary - PAC did consider the complained of matters - condition sets out the framework for affected landholders seeking to claim compensation - flooding impact compensation issues will arise to be considered on the particular facts and circumstances of any specific compensation claim pursuant to the condition - no uncertainty invalidating the condition as a consequence - Ground 9 rejected JUDICIAL REVIEW - alleged invalidity of water supply compensation condition - pleading that the condition impermissibly constrained landowners rights to compensation pursuant to other statutory entitlements not pressed - allegation of absence of power to impose a water supply compensation condition - pleading of Wednesbury unreasonableness of compensation condition - consideration of power to impose condition - power existed to impose condition - no submissions made in support of Wednesbury "unreasonableness" assertion - condition said not to relate reasonably to the development (second Newbury test) - condition reasonably relates to the development - Ground 10 rejected Legislation Cited: Associations Incorporation Act 2009 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, cl 14 Supreme Court Act 1970, s 69 Uniform Civil Procedure Rules 2005, r 6.24 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Anderson v Director General of the Department of Environmental and Climate Change & Anor (2008) 163 LGERA 400; [2008] NSWCA 337 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Darkinjung Local Aboriginal Land Council v Wyong Coal Pty (No 2) [2014] NSWLEC 71 Gloucester Resources Ltd v the Minister for Planning [2019] NSWLEC 7 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 Moorebank Recyclers Pty Ltd v Benedict Industries [2015] NSWLEC 40 Newbury District Council v Secretary of State for the Environment [1981] AAC 578 Parramatta City Council v Hale (1982) 47 LGERA 319 Rivers SOS Inc v Minister for Planning (2010) 178 LGERA 347; [2009] NSWLEC 213 The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited (2008) 160 LGERA 20; [2008] NSWLEC 185 Walsh v Parramatta City Council [2007] NSWLEC 255 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Western Australian Planning Commission v Temwood Holdings Ply Ltd (2004) 221 CLR 30; [2004] HCA 63 Wollar Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 Wollongong Coal Pty Ltd v Minister for Planning and Environment [2016] NSWLEC 154 Category: Principal judgment Parties: Australian Coal Alliance Incorporated (Applicant) Wyong Coal Pty Ltd (First Respondent) Minister for Planning (Second Respondent) Kores Australia Pty Ltd (Third Respondent) Sojitz Coal Resources Pty Ltd (Fourth Respondent) Kyungdong Australia Pty Ltd (Fifth Respondent) SK Networks Resources Australia (Wyong) Pty Ltd (Sixth Respondent) SK Networks Resources Pty Ltd (Seventh Respondent) Representation: Counsel: Mr C Leggat SC/Ms J Walker, barrister (Applicant) Mr R Lancaster SC/Mr D Hume, barrister (First Respondent) Mr A Shearer and Ms R Mansted, barristers (Second Respondent) Submitting appearance (Third, Fourth, Fifth, Sixth and Seventh Respondents)