The recent decision of Chief Justice Preston in Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning  NSWLEC 6, related to the impact of a proposed open cut coal mine on koalas. Interestingly, both the applicant and respondent agreed that the coal mine was likely to significantly affect koalas and their habitat. However, the applicant argued that those conclusions were made (by the respondent and the Planning Assessment Commission (PAC)) by misconstruing the relevant statutory provisions.
Some more facts about the decision
Judicial Review proceedings were brought in relation to the grant of development consent by the PAC, as delegate of the Minister for Planning. The development consent permitted Shenhua Watermark Coal Pty Ltd (Shenhua) to develop an open cut coal mine 25kms southeast of Gunnedah (Project). The Project is State significant development (SSD).
A local community group, Upper Mooki Landcare Inc (UMLI) brought judicial review proceedings challenging the Minister’s decision for reasons including that:
- the development application, and the PAC’s determination, had misconstrued the requirement of cl 1(1)(e) of Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) that the development application contain ‘an indication of whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats’;
- the PAC had failed to consider the likely impact of the Project on the natural environment (in relation to impacts on koalas), as it was required to do under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act); and
- the PAC had failed to properly consider the public interest, as it was required to do under s 79C(1)(e) of the EP&A Act, in that it failed to adequately consider two of the principles of ecologically sustainable development (ESD) – the precautionary principle and the principle of conservation of biological diversity and ecological integrity.
For reasons including those discussed below, Chief Justice Preston dismissed the proceedings.
Incorrect completion of approved form of development application
To lodge an application for SSD an applicant is required to complete a standard form, approved for the purposes of cl 50(1)(b) of the EP&A Regulation (Approved Form). The Approved Form requires an applicant to provide an ‘indication’ of whether the development was likely to significantly affect threatened species, populations or ecological communities, or their habitats. Shenhua had ticked a box answering ‘yes’ to this question, without providing further detail.
UMLI submitted that more detail was required, sufficient to enable the PAC to take into account the factors listed in s 5A(2) of the EP&A Act, including whether the Project would likely adversely affect a ‘viable local populations’ of koalas. That response, according to UMLI, also needed to consider the term ‘local population’ as defined under the guidelines approved under the Threatened Species Conservation Act 1995. By simply answering ‘yes’ UMLI submitted that the development application was not a ‘development application’ for the purposes of the EP&A Act and so development consent could not be granted.
The Court disagreed. The Court compared the word ‘indication’ with other language used in Schedule 1 of the EP&A Regulation, such as ‘assessment’, ‘analysis’, ‘general description’ and ‘detailed description’. In contrast to those other expressions, the Court held that a question requiring an ‘indication’ is capable of the binary response of either yes or no.
Even if the development application had been filled out incorrectly, the Court found that there is no place within the statutory scheme under the EP&A Act for the concept of a valid or invalid development application. That is, even if Shenhua had made an error in completing the development application form, the development application would still have legal effect as an application for development consent.
Failure to consider impacts on koalas
The material before the PAC contained widely varying estimates of current koala numbers within the Gunnedah LGA, and noted that translocating the koalas away from the Project site could lead to koala fatalities. The PAC had addressed this uncertainty by imposing conditions on the development consent requiring Shenhua to prepare baseline data on the koala population size and a management plan for koala translocation.
However, UMLI contended that:
- the PAC was required to reach a definitive view as to the current koala population size and the number of koala fatalities that would likely result from translocating that population away from the Project Site; and
- by deferring these matters to consent conditions, the PAC had failed to properly consider the impacts of the Project on koalas, as required by s 79C(1)(b) of the EP&A Act.
The Court disagreed. During the assessment process the PAC had considered the size of the koala population and was well aware of, had actively considered, and had imposed consent conditions in relation to the likely Project impacts on koalas and mitigation measures, including koala translocation. There was no duty imposed on the PAC to make definitive fact findings about the size of the koala population and the likely success of the koala translocation program.
Failure to properly consider and apply ESD principles
UMLI submitted that the PAC had failed to properly consider the public interest, as it was required to do under s 79C(1)(e) of the EP&A Act, in that it failed to adequately consider and apply the following principles of ESD:
- the precautionary principle, by not undertaking an assessment of the risk-weighted consequences of various options to mitigate and manage the identified impacts of the Project on the koalas; and
- the principle of conservation of biological diversity and ecological integrity, by failing to consider the uncertainty as to the size of the local koala population, the likely success or failure of koala translocation, and any viable local koala populations impacted by the Project, and deferring consideration of these matters until after the grant of development consent.
The Court accepted that the PAC was required to consider those ESD principles, but not at the level of particularity and in the precise manner insisted by UMLI.
Take away from the case
Some points to take away from this decision are that:
- a development application that is incorrectly completed will still have legal effect as a development application for determination by a consent authority – and there is no concept of a ‘valid’ or ‘invalid’ application under the EP&A Act; and
- when considering the mandatory matters for consideration under s 79C of the EP&A Act, a consent authority will not be required to conduct an overly detailed assessment or make conclusive determinations of technical matters.