Australia: Lester v Minister for Planning & Ashton Coal Operations Pty Ltd [2011] NSWLEC 213


This case involved a decision by the Minister of Planning under the Environmental Planning and Assessment Act, to authorise variations to the Ashton Coal Project being carried out in the Upper Hunter Valley of NSW. The variations that were authorised by the Minister were the instalment of 15 surface gas drainage wells that were to be used to assist the ventilation of gas methane into the atmosphere.


In October 2002, Ashton Coal Operations Pty Ltd, was granted permission (The Principal Consent), to construct an open cut coal mine, an underground (Longwall) coal mine, and the building and operation of associated surface facilities, which were to be later known as the Ashton Coal Project. The approval granted allowed Ashton to extract up to 5.45 million tonnes ("MT") of run-of-mine (" ROM") coal per year from its open cut and underground mining operations, with up to 3.2 MT of coal permitted to be extracted from its underground mining operations, until 2023.

Current proceedings

In total, there were seven alterations submitted after the Principal Consent. The seventh alteration being the subject of the current proceedings as the mine resources were close to exhaustion. The applicant, Robert Lester, bought proceedings against the Minister for Planning and Ashton Coal on two accounts. At first instance, he submitted that the approval granted for the seventh alteration was invalid as the documents included in the application were not available to the public as per normal procedure on the Department of Planning's website. He also submitted the Minister had miscalculated the greenhouse gas (GHG) emissions for the project amounting to 328,000 tonnes when in reality, the annual (our emphasis) figure of the projects GHG emissions were 328,000 tonnes.

In relation to the first submission, the Federal Court held that the department made a document by the name of 'Environmental Assessment' (EA), which outlined the details of the 7th modification, available for viewing on its website. Links were provided separately on the website to appendices 1-4, which dealt with the proposed gas well development, and to appendices 5-8, which dealt with the minor open cut expansion. However, if a person accessed the Department's website and clicked on the purported link to appendices 1-4, the person gained electronic access to Appendices 5-8, rather than to appendices 1-4. A message on the same page further stated:

"For further information, please contact the planner, Nicholas Hall via email at".

Justice Moore stated in relation to the submission, "It is clear that the Department intended to publish the EA as well as the appendices on the web. It was the deficient link, almost certainly inadvertent, which led to this not being completely achieved. However, it can readily be inferred, and I draw the inference, that had an interested member of the public contacted the planner Nicholas Hall, identified on the website, and asked for the missing appendices (perhaps pointing out the problems with the link), they would have been provided. Providing them would be entirely consistent with the Department's intention. By these means all documents (including all the appendices) would have been made available to interested members of the public. Accordingly, on the facts, the documents were made publicly available which is the requirement in the Act."

In relation to the second point, the Court found that the Minister had not failed to consider the GHG emissions of the project. While the figure representing the expected emissions in the Director General's report was misleading, other documents before the Minister clearly stated that 328,000 tonnes would be the annual GHG output.

Moore J, further commented in his judgment: "It is true that the determination report observed that the Department's assessment report had considered a number of issues including greenhouse gas emissions and a number of further references were made to that assessment report. However, the Planning Assessment Commission (PAC), concluded by saying that it had considered the assessment report and associated documents including the notice of modification. There is really no basis for assuming that this additional material to which the PAC referred, did not include the EA."

This decision demonstrates that the requirement to make documents publicly available is satisfied if there are other options available to obtain information, even if one method is invalid or non-functional. It also illustrates that errors of fact in documents need not always invalidate a decision, provided that the correct facts are stated in other documents before the decision-maker.

The application was dismissed and the applicant was ordered to pay costs.

Legislative changes

NSW Parliament resumes Tuesday 14 February 2012

NSW Legislation passed / commenced in Dec 2011 and Jan 2012:

Coal Industry Regulation 2011 (2011-687) - published LW 20 December 2011

Mine Subsidence Compensation Amendment (Contributions) Regulation 2011 (2011-686) - published LW 20 December 2011

Coal Mine Health & Safety Regulation 2006
Notice under Clauses 149 and 152 Specifying Polymer Injection etc. as Licensable and Contents of Licence Applications
GG No 132 of 23 Dec 2011, p 7339

Coal Industry Act 2001
Notice of Approval pursuant to s9
GG No 126 of 14 Dec 2011, p 7144 - 7147

CTH Parliament resumes Tuesday 7 February 2012

CTH Legislation passed / commenced in Dec 2011 and Jan 2012:

Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011 - commenced 1 Jan 2012

Coal Mining Industry (Long Service Leave Funding) Amendment Regulations 2011 (No. 1) - commenced 1 Jan 2012

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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