What is the decision?

On 8 February 2019, Chief Judge Brian Preston SC handed down the NSW Land and Environment Court decision in Gloucester Resources Limited v. Minister for Planning [2019] NSWLEC 7.

The decision refused Gloucester Resources Limited (GRL)’s appeal against the Minister for Planning’s earlier refusal of GRL’s application for approval of the proposed Rocky Hill open cut coal mine, near Gloucester.

Parties to the case included Groundswell Gloucester Inc., a local community action group concerned about the impacts of the proposed mine on the local community and the environment.

Justice Preston refused the appeal, having considered extensive technical and scientific evidence, a long list of Australian and foreign cases, and specific provisions of NSW planning legislation instruments which require consent authorities to consider anticipated climate change impacts in determining applications for mining projects.

The grounds for refusal included:

• anticipated adverse impacts on visual amenity
• the rural and scenic character of the Gloucester Valley
• existing and proposed uses of surrounding land, and
• the generation of greenhouse gases resulting from the construction and operation of the mine, transportation of coal and its combustion.

Why is this decision important?

This decision is set apart from earlier cases involving mine approvals due to the express acceptance by the Court of greenhouse gas emissions and the resulting contribution to climate change as an adverse impact appropriate to be considered in refusing the application. The judgment references the requirements of the 2015 Paris Agreement on Climate Change and cites Australia’s commitments under the Paris Agreement as relevant considerations. The case also provides guidance on the Court’s methodology in addressing anticipated impacts on climate change within the existing development approval regime.

It is notable that the parties to the case did not contest that climate change is real and that greenhouse gas emissions must be reduced rapidly in order to meet internationally agreed temperature targets. Instead, GRL’s arguments centred on technical and economic matters such as:

• the end use of the coal
• which emissions should properly be taken into account in estimating the proposed mine’s impact, and
• whether Australia’s emission targets could be achieved through means other than refusing the proposed mine.

In addition to reinforcing the significance of anticipated greenhouse gas emissions, Justice Preston also left a suggestion in his final summation that the timing of a particular development may have significance in addition to other consideration criteria:

In short, 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 [greenhouse gas] 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. (Emphasis added)

The suggestion here is that anticipated greenhouse emissions may not have been given the same weight in consideration of a similar application at an earlier time.

What does this mean for the future?

The decision represents further expansion of the acceptance by NSW courts that there is a direct link between fossil fuels and climate change, and that likely climate impact is a matter properly taken into account in determining development applications. The Court’s approach in this case could also be applied to applications for approval for projects other than coal mines where greenhouse emissions are likely.

The case’s findings should be of great interest, not only to the coal industry but also to developers and state and local government bodies involved in development applications involving greenhouse emitting activities.