Australia: Is your State development likely to significantly affect threatened species or their habitats? The devil is not in the detail!

On 19 February 2016, Preston CJ of the NSW Land and Environment Court handed down the decision in Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] NSWLEC 6, dismissing the applicant's judicial review challenge to the Watermark Coal Project, an open cut coal mining project located south east of Gunnedah. For the central issues in contention, the Court (reinforcing previous similar judgments) determined that the PAC was not required to make definitive findings of fact at the level of particularity alleged by the applicant and that consent authorities are not required to make definitive findings of fact about precise impacts particularly when they can be addressed by way of conditions of development consent.

BACKGROUND

The applicant, Upper Mooki Landcare Inc (UML), sought judicial review of a decision of the Planning Assessment Commission (PAC), to grant development consent (Consent) to an application made by Shenhua Watermark Coal Pty Ltd (Shenhua) to carry out the Watermark Coal Project (Project), an open cut coal mine about 25kms south east of Gunnedah. The Project, as a coal mine, was assessed as State significant development under section 89C of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

UML challenged the PAC's decision on four grounds, each of which concerned the PAC's assessment of Project impacts on koala populations located within the Project boundary and the adjoining Breeza State Forest. Preston CJ ultimately held that UML had not established any of its grounds of challenge to PAC's decision to grant the Consent.

THE ALLEGED "MISDIRECTION" GROUNDS

Two of UML's grounds of challenge contended that the development application, and the PAC's consideration of it, involved misdirection as to the construction of the statutory provisions regarding whether there was likely to be a significant effect on the threatened species of the koala or its habitat. As a result, UML submitted, the manner in which the PAC considered the factors in section 5A(2) of the EPA Act was erroneous, leading to invalidity of the Consent.

Preston CJ observed that, for the purpose of the requirement in clause 1(1)(e) of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), the development application need only contain a brief "yes or no" indication, without detail, of whether development is likely to significantly affect threatened species, populations or ecological communities, or their habitats. Shenhua did answer this question on the application form, by ticking the box next to "yes" and hence gave the indication that the Project was likely to significantly affect koala populations and their habitat. This was also supported by further information in its environmental assessment. Further, any error in interpretation or application of section 5A(2) by an applicant filling out an application form would not have the legal consequence of causing the development application to be invalid.

Given these findings, it was unnecessary for Preston CJ to give further consideration to UML's contentions regarding the construction of section 5A(2)(a) of the EPA Act and the Threatened Species Assessment Guidelines. His Honour also noted that many other legislative requirements relating to consideration of threatened species, populations or ecological communities or their habitats, such as the public consultation requirements under section 89F of the EPA Act and clauses 82-85B of the EPA Regulation, or the requirement for a species impact statement to accompany a development application (clause 2(1)(f) of Schedule 1 to the EPA Regulation), do not apply to applications for State significant development.

ALLEGED FAILURE TO CONSIDER IMPACTS ON KOALAS

UML further contended that the PAC's consideration of the impact of the Project on koalas required by section 79C(1)(b) of the EPA Act miscarried in two ways, being that the PAC failed to consider:

  1. the size of the population of koalas that would be directly impacted by the Project; and
  2. how many fatalities would likely arise as a result of koala translocation,

instead deferring those considerations until after development consent was granted.

Preston CJ rejected these grounds, finding that the PAC did consider the matters to the extent that they were required to be considered at the assessment stage. His Honour considered that there was no legal duty on the PAC to make definitive findings of fact, at the level of particularity alleged by UML, about the precise size of the population of koalas that were likely to be impacted by the Project or the certainty of success of the koala translocation program, before determining to grant consent to the Project. UML's challenge to the PAC's decision on these grounds went to the merits of the decision, which was not open to the Court to consider on judicial review.

ALLEGED FAILURE TO CONSIDER TWO PRINCIPLES OF ESD

UML's final ground of challenge was that the PAC, in considering the public interest under section 79C(1)(e) (applied by section 89H) of the EPA Act, failed to consider two principles of ecologically sustainable development (ESD) (namely the precautionary principle and the principle of the conservation of biological diversity and ecological integrity) when assessing the Project's impacts on koalas. UML further sought to invoke the public trust doctrine in contending that the PAC's consideration of these two principles needed to be informed by the fact that koalas, as protected fauna, are taken to be the property of the Crown and therefore the subject of a public trust.

Although Preston CJ accepted that the PAC was obliged to take into consideration these principles of ESD, His Honour was not satisfied that the PAC had failed to consider them. It was evident from the information contained in the development application and supporting documentation, the Secretary's Environmental Assessment Report, the PAC Review Report, the PAC Determination Report and the conditions of consent, that the PAC had, in substance, considered the two principles of ESD. In particular, the imposition of the conditions requiring, amongst other things, collection of baseline data on the resident koala population, demonstrated action taken to mitigate uncertainties about the likely success or failure of koala translocation. In any event, His Honour said the PAC's obligation to consider these two principles of ESD did not demand consideration at the level of particularity argued by UML.

His Honour did not make any finding in relation to whether the public trust doctrine, if applicable, would separately give rise to an obligation to consider the principles of ESD. The obligation arises under section 79C(1)(e) in any case. To the extent that UML argued the public trust doctrine would require a consent authority, in determining a development application, to consider "affirmatively, fundamentally and properly" the relevant matters, this was an impermissible intrusion upon the merits of the decision under review.

IMPLICATIONS

The Court's judgment reinforces previous judgments of a similar nature (e.g. Drake-Brockman v Minister for Planning [2007] NSWLEC 490 and Walsh v Parramatta City Council [2007] NSWLEC 255) in determining that the PAC was not required to make definitive findings of fact at the level of particularity alleged by the applicant. Preston CJ remarked several times throughout the judgment that Shenhua went beyond what the legislation required. Specifically, Shenhua was not required to consider each factor under section 5A(a) and in some cases merely a "yes or no" answer was required. The obligations of a consent authority, like the PAC, when considering relevant impacts under section 79C(1) of the EPA Act, do not require resolution or factual findings on particular sub-topics going beyond what is specified under the relevant statutory provisions (and including consideration of the principles of ESD under section 79C(1)(e)).

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 the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.