Court upholds concerns over climate change impacts in refusing consent to open cut coal mine

In a landmark decision, NSW Land and Environment Court Chief Justice Preston has rejected an application for an open cut mine in the Gloucester Valley due largely to the impacts the mine would have on climate change and the community.

Gloucester Resources Limited (GRL) proposed to mine seams of coal in an “idyllic” valley located beneath Rocky Hill, close to the Mid North Coast town of Gloucester. The town has a core of dense urban development and a number of rural residential estates and smaller agricultural and agri-tourism properties on its outskirts. Some of the outlying properties were to be within one to two kilometres of the mining pit.

The proposed mine has heavily divided the community of Gloucester, with the local action group Groundswell Gloucester being joined as a party to the proceedings and represented by the Environmental Defenders Office, to argue that the mine’s detrimental impact on climate change and on the social fabric of the town were relevant matters to be taken into consideration by the Court.

GRL had unsuccessfully applied to the Minister for Planning for development consent to develop, operate and rehabilitate the 832ha site over a period of up to 21 years. The maximum run-of-mine coal production would be 2 million tonnes per annum, with 500 hectares of the site to be disturbed throughout the life of the project.

Court proceedings were commenced in December 2017, after the Planning Assessment Commission, as the delegate of the Minister, refused consent on the grounds of visual amenity.

Numerous contentions were raised on appeal, particularly by Groundswell Gloucester, as to why the development consent should be refused, including:

  • the incompatibility of the proposed mine with the existing, approved and likely preferred uses of land in the vicinity of the proposed mine, under clause 12 of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2009;
  • the adverse visual impacts of the mine;
  • the adverse social impacts of the mine, including social impacts caused by the noise, dust and visual impacts of the mine;
  • the economic and public benefits of the mine are uncertain and overstated and not shown to be greater than the public cost of the mine; and
  • the project is not in the public interest, for the above reasons, and because it is contrary to the principles of ecologically sustainable development due to the direct and indirect greenhouse gas emissions of the mine will contribute to climate change.

Chief Justice Preston upheld each of these contentions, and highlighted the climate impacts of coal mining.  Importantly his Honour held that the “downstream” emissions from the burning of the coal (scope 3 emissions) must be considered as an impact.  Further this impact would be calculated by reference to the burning of the amount of coal forecast to be extracted, not just the emissions from the additional coal over and above the amount that would be burnt in the absence of the mine.

His Honour clearly states that the assessment requirements both relating to the public interest and the “downstream” impacts of a development extend to “all of the direct and indirect greenhouse gas emissions of the Rocky Hill Coal Project” and concluded that:

An open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided.

The case provides a compendium of judicial decisions relating to climate change and opens up the door for future objectors to raise climate change impacts as a reason to refuse consent to projects based on their direct and indirect emissions.

This post was written by Maddocks lawyer Melinda Norquay

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