On 27 February 2013, the NSW Land and Environment Court handed down judgment in SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Limited  NSWLEC 1032. The Court overturned the approval of the major project application which sought to extend and expand mining operations in the Southern Highlands. In so doing, the Court found that the mine would have unacceptable impacts, including significant nuisance to the community, and that there had been a failure to satisfy the precautionary principle.
The Berrima Colliery (Colliery) is operated by Delta Mining Pty Ltd, on behalf of Boral Cement Limited (Boral), and serves as the singular source of coal for Boral's cement works.
The Colliery has been in continuous production since about 1926. The Colliery has been operating under section 74 of the Mining Act 1992 (NSW), which provided that development consent was not required for underground mining. The repeal of this provision in 2005 meant that all mining operations require approval under the Environmental Planning and Assessment Act 1979 (EPA Act). Clause 8K of the Environmental Planning and Assessment Regulations 2000 (NSW) allowed section 74 to operate until its expiry on 30 September 2012.
Boral submitted a major project application (MP1_0172) pursuant to the provisions of Part 3A of the EPA Act for the Berrima Coal Project (Project). The Project comprised:
- the continued operation of the Colliery until April 2020;
- an increase in production of run-of-mine coal from 220,000 to 460,000 tonnes per annum;
- transportation of product by road using trucks and stockpiling areas; and
- extension to the underground mining of coal.
On 20 June 2012, the Planning Assessment Commission (PAC), as a delegate for the Minister for Planning and Infrastructure, granted approval to the Project under section 75J of the EPA Act (Approval).
The Southern Highlands Coal Action Group Pty Ltd (Applicant) filed a Class 1 application (an objector's merit appeal) against the Approval pursuant to section 75L of the EPA Act. The Applicant contended that the approval was not in accordance with the principles of environmentally sustainable development (ESD). It alleged that:
- the impact of the proposal on groundwater levels had not been adequately identified or modelled and consequently, the risk of environmental harm was uncertain and not adequately mitigated; and
- the proposal would adversely impact on the health of the Wingecarribee River.
The issues before the Court included:
- Whether the Project would have an unacceptable impact on amenity; and
- Whether the Project should be refused on the basis that it was not in accordance with the principles of ESD, specifically:
- Whether the Water Management Plan (WMP) adequately identified and assessed the impact of the proposal on groundwater and the health of the Wingecarribee River; and
- Whether the adaptive management regime proposed by the WMP adequately managed the risks of environmental harm.
The Court found that the proposed haulage route would have had an impact on the amenity of the residents of Medway sufficient to warrant refusal of the Project. In reaching this conclusion, the Court indicated that the existing 46 trucks movements per weekday caused levels of noise, dust and traffic impacts that were "a significant nuisance" to residential amenity. Therefore, the proposed increase in truck movements, which would see an additional 84 truck movements per weekday, was "sufficiently detrimental to warrant refusal of the proposal". Further, the conditions proposed by the PAC did not satisfactorily ameliorate the detrimental impacts caused by the proposed haulage route.
The WMP and the health of the Wingecarribee River
The Director-General's environmental assessment requirements (DGRs) indentified a number of issues to be addressed by the Environmental Assessment (EA), including the requirement for a detailed risk assessment of the potential impacts of the Project on the environment. This assessment needed to consider the impact of the project on water, and how those impacts could be mitigated.
In assessing the impact of the Project on ground water and surface water, the PAC acknowledged that there was a "lack of appropriate data" but approved the proposal on the condition that environmental performance measures, including a WMP, be prepared by Boral.
The Court held that this approach was unsatisfactory and said (at ):
"the preparation of a management plan as a condition of consent should not be a panacea to overcome the necessity to consider a requisite matter, as the consent authority has an obligation to consider and determine all relevant matters ..."
The Court found that the requirement for the preparation of the WMP as a condition of the consent "left major and fundamental issues undetermined in respect of the impact of the proposal".
Accordingly, the Court held that a retrospective assessment of the impact of the proposal by way of a condition did not adequately identify and assess the impact of the Project on the Wingecarribee River.
Adaptive management regime proposed by the WMP
The Court found that the Project did not provide an adaptive management regime. Further, the lack of data and the "draft state" of the WMP supported the conclusion that it was not possible to impose precise limits on the cumulative operations of the Colliery and that there was too much uncertainty in the goals to be achieved by the WMP. Therefore the adaptive management regime was inconsistent with the requirements that the Court has imposed for adaptive management regimes: Environment Protection Authority v BMG Environmental Group Pty Ltd and Barnes  NSWLEC 48 at  per Preston CJ.
Due to these uncertainties, the Court found that the risk of environmental harm had not been adequately assessed and, accordingly, the precautionary principle was activated. There was sufficient evidence to show that the Project may result in adverse impacts on the health of the Wingecarribee River.
Due to Boral's failure to demonstrate that the Project is not harmful and to provide a WMP that could be categorised as an adaptive management regime, the Court held that Boral had not discharged the burden of proof that the risk of environmental harm would be adequately mitigated.
This decision has broader implications for, not only mining companies, but all proponents who are required to undertake environmental assessment. This decision places heavy emphasis on proponents to satisfy the decision maker that the risk of environmental harm has been adequately assessed and mitigated. The imposition of conditions on the approval will not be a satisfactory means of addressing the risk of environmental harm unless there is an adaptive management approach which imposes precise limits on the cumulative impacts of a proposal.
We understand that this decision has been appealed by Boral.
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.
|Most awarded firm and Australian deal of
Australasian Legal Business Awards
|Employer of Choice for
Equal Opportunity for Women
in the Workplace (EOWA)