Australia: Things to keep in mind: Recent NSW planning decisions and what those principles say about everyday development

Last Updated: 19 October 2017
Article by Alex Collie and Paul Carroll

Two recent cases regarding planning permission for NSW Coal Mines have resulted in a 1-1 draw for miners. Approval for a proposed mine extension has been reversed by the Court of Appeal, while a fortnight earlier the Land and Environment Court found that the consent for an open cut coal mine in the upper Hunter Valley had not lapsed as argued by local environment groups. For those not involved in the resource industry, both these cases still raise important issues to consider in everyday development regarding how impacts are considered and the consequences of lapsing of consent.

Springvale decision

The matter of 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191 involved an appeal regarding consent to an extension of a mine. Clause 10 of the State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 requires a consent authority not to grant development consent unless it is satisfied that the proposed development would have a "neutral or beneficial effect on water quality" where the development is situated on land in the Sydney drinking water catchment. The NSW Planning Assessment Commission (PAC) approved the extension and such consent was appealed by 4nature on the basis of Clause 10 of the SEPP. This appeal was rejected by the Land and Environment Court, however the Court of Appeal reversed the decision and allowed the appeal.

The Court of Appeal took issue at how the PAC had compared the water quality in two scenarios: one where the development is carried out and one where it is not. The baseline water quality considered in this comparison took into account discharge by the existing coal mine at Springvale, however that mine was to cease operations in September 2015. The comparison had not taken temporal considerations such as the termination of the existing use and as such the Court held that the PAC undertook an erroneous comparison in its decision making required under the SEPP.

Hunter Valley decision

Two weeks before the decision in 4Nature, Pain J of the Land and Environment Court dismissed the appeal in Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) [2017] NSWLEC 87. Development consent for the mine in question had been granted in December 1999 and the consent would lapse after 5 years unless building, engineering or construction work relating to the development was physically commenced on land to which the consent applies. This lapsing is based upon an older version of the Environmental Planning and Assessment Act 1979 (EPA Act), although the relevant wording is similar to the current amended EPA Act.

The Association argued that MACH was required to comply with certain conditions of the relevant Environmental Impact Statement (EIS) prior to beginning construction work on an environmental dam and as such was unlawful and could not prevent the lapsing of consent. It was further submitted that the dam did not accord with the EIS and as such could also not be considered "construction" that would prevent lapsing of consent. Pain J applied the requirements under Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124, namely:

  1. Was the work relied on building, engineering or construction work?
  2. Did it relate to the approved development?
  3. Was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

Pain J found that preparatory work such as surveying and geotechnical work would be considered "engineering" (as had been done so previously) and provided such preparatory work is not of itself unlawful there is no reason it cannot prevent the lapsing of consent. No basis could be found arguing that surveying and geotechnical work does not relate to the approved development or was physically commenced on the land.

The construction of the damn was also found to have met the requirements under Hunter Brokerage, noting that the "EIS is not to be construed strictly as if a legal instrument". As such, the consent was found not to have lapsed.

What to consider outside of the mines

While both decisions have significant political, economic and environmental ramifications, neither bring in any considerable change to the NSW planning law situation. What they do raise, however, are important considerations to keep in mind regardless of the extent of development that is planned.

An assessment of development will invariably require a consideration of its impacts. Decision makers will have to consider the future environment and planning context as can be reasonably anticipated. Such as in the Springvale decision, where it is known that a significant land use will change in the future this should become part of the consent authority's decision making. It is important to consider how the temporal aspect of the environment will come in to play when your development is being considered.

Where there is risk of lapsing of development consent, it may be critical to ensure work is commenced to an extent that will prevent the lapsing of that consent. This work must be more than "merely notional or equivocal". Certain early stage preparations (such as surveying or geotechnical work) may prevent lapsing provided they meet the requirements under Hunter Brokerage. Regardless of the scale of your development, you should remain well abreast on all your required consents and at what date they may lapse to ensure you commence work (and retain evidence of that work) prior to it lapsing.

Update: On 11 October 2017 a bill updating the SEPP in the Springvale Mine case was passed by NSW public. The SEPP explicitly states that consent for the Springvale Mine extension is validated. The SEPP further allows consideration in light of continuing development (such as was the case with Springvale) so that the comparison can be made as if any land use that was to expire will instead continue.

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.

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

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

Alex Collie
Paul Carroll
Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions