Bushfire Survivors for Climate Action Incorporated (Inc 1901160) v Narrabri Coal Operations Pty Ltd (ACN 129850139)

[2023] NSWLEC 69

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bushfire Survivors for Climate Action Incorporated (INC 1901160) v Narrabri Coal Operations Pty Ltd (ACN 129850139) [2023] NSWLEC 69

Hearing dates:

15, 16, 17 February and 8 March 2023

Date of orders:

05 July 2023

Decision date:

05 July 2023

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraphs 187 and 188

Catchwords:

JUDICIAL REVIEW – challenge to the grant of development consent by the Independent Planning Commission (IPC) for an extension to an Underground Mine – whether the decision was legally unreasonable – whether interim findings were legally necessary to enable the IPC to make a legally reasonable decision – whether the statutory context required interim findings to be expressly made by the IPC – whether an inference should be drawn that the IPC’s assessment of impacts of the Extension Project could not be within the range of possible lawful outcomes as an exercise of power – whether Extension Project was in the public interest – Summons dismissed

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Environmental Planning and Assessment Act 1979 (NSW)

Protection of the Environment Administration Act 1991 (NSW)

Environmental Planning and Assessment Regulation 2021 (NSW)

State Environmental Planning Policy (Resources and Energy) 2021 (NSW)

Cases Cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439

Bat Advocacy NSW Inc v Minister for the Environment Protection, Heritage and the Arts (2011) 180 LGERA 99

BRF038 v Republic of Nauru (2017) 91 ALJR 1197

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining (2013) 194 LGERA 347

BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292

Carstens v Pittwater Council (1999) 111 LGERA 1

Comcare v Banerji (2019) 267 CLR 373

IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v Special Minister of State [2022] NSWLEC 86

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Border Protection v SZSNW (2014) 229 FCR 197

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Planning v Walker (2008) 161 LGERA 423

Minster for Immigration and Citizenship v Li (2013) 249 CLR 332

NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277

Payne v Deer [2000] 1 Qd R 535

Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Weal v Bathurst City Council (2000) 111 LGERA 181

Category:

Principal judgment

Parties:

Bushfire Survivors for Climate Action Incorporated (INC 1901160) (Applicant)
Narrabri Coal Operations Pty Ltd (ACN 129850139) (First Respondent)
Independent Planning Commission of NSW (Second Respondent)

Representation:

Counsel:
K Stern SC, D Hume and E Dunlop (Applicant)
S Free SC and J Davidson (First Respondent)
B Kaplan (Second Respondent)

Solicitors:
Environmental Defenders Office (Applicant)
Ashurst (First Respondent)
Department of Planning and Environment (Second Respondent)

File Number(s):

2022/192651

Publication restriction:

No

Judgment

Nature of proceedings

1. The Applicant, Bushfire Survivors for Climate Action Incorporated (INC 1901160) (Applicant), by way of summons filed 1 July 2022, commenced judicial review proceedings challenging the grant of development consent (Decision) by the Second Respondent, the Independent Planning Commission of NSW (IPC) to the First Respondent, Narrabri Coal Operations Pty Ltd (ACN 129850139) (Narrabri Coal) for the extension to the Narrabri Underground Mine Extension (Stage 3) Project (the Extension Project).

2. The Applicant seeks a declaration that the Decision to grant the consent was invalid as it was legally unreasonable together with consequential orders.

3. The sole basis of the Applicant’s claim was that the Decision was legally unreasonable. The Applicant’s claim focussed on the issues raised in the determination of the Extension Project relating to the impacts of that project on climate change.

Facts

4. Narrabri Coal is a wholly owned subsidiary of Whitehaven Coal Limited and operates the Narrabri Underground Coal Mine (Mine) on behalf of the Narrabri Mine Join Venture.

5. The IPC is a corporation constituted by s 2.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

6. The parties agreed and tendered as evidence in the proceedings an Agreed Statement of Facts from which the facts that follow have been drawn.

The Mine

7. The Mine is a major coal mining operation situated in the Gunnedah Coalfield. It is located approximately 25 kilometres south-east of Narrabri and approximately 60 kilometres north-west of Gunnedah.

8. On 13 November 2007, Project Approval No. 05_0102 for the Narrabri Coal Project was granted under the former Part 3A of the EP&A Act.

9. On 26 July 2010, Project Approval No. 08_0144 for Stage 2 of the Narrabri Coal Project (Stage 2 Project) was granted under the former Part 3A of the EP&A Act (Stage 2 Approval). The Stage 2 Approval was subsequently modified under the EP&A Act on six occasions.

10. The development authorised by the Stage 2 Approval included:

1. The mining of 20 panels, longwalls 101-111 and longwalls 201-209;

2. The extraction of coal from longwalls 101-111 and longwalls 203-209 (formerly known as longwalls 112-118) by longwall mining methods, and the extraction of coal from longwalls 201-202 (formerly known as longwalls 119-120) by bord and pillar mining methods;

3. The extraction of up to 11 million tonnes (Mt) of run-of-mine (ROM) coal from the site each calendar year, and the transportation of product coal from the site by rail for export from the port of Newcastle; and

4. The carrying out of mining operations on the site until 26 July 2031.

11. Coal has been extracted at the Mine by longwall methods since June 2012 and the extraction of coal within longwalls 101-109 has been completed.

The Extension Project

12. On 23 October 2020, a development application for the Extension Project was lodged.

13. The Extension Project included:

1. The continuation of mining within the Stage 2 Approval underground mining area; and

2. Mining within an extended Stage 3 underground mining area to the south of the Stage 2 Approval underground mining area.

14. On 19 January 2022, the Extension Project was referred to the IPC for determination as the Minister for Planning had requested that a public hearing into the carrying out of the Extension Project be held. On 14 and 18 February 2022, a public hearing was held by the IPC as directed by the Minister for Planning in relation to the Extension Project.

The decision to approve the Extension Project

15. On 1 April 2022, the IPC determined the development application in respect of the Extension Project by granting a development consent subject to conditions under the EP&A Act and published a 54-page statement of reasons for that decision (Statement of Reasons).

16. The development authorised by the Decision included:

1. Longwall mining within the Stage 2 underground mining area (that is, the extraction of coal from longwalls 110-111 and 203-209);

2. Longwall mining within the extended Stage 3 underground mining area, which included major extensions of longwalls 203-209 (those extensions were also referred to as longwalls 301-307) and the mining of an additional longwall panel (longwall 210/308);

3. The extraction of up to 11 Mt of ROM coal from the site each calendar year, and the transportation of product coal from the site by rail for export from the port of Newcastle; and

4. The carrying out of mining operations within the expanded Mine site until 31 December 2044.

Greenhouse gas emissions

17. The Statement of Reasons indicated that the estimated greenhouse gas emissions for the Extension Project (which included the continuation of mining within the Stage 2 underground mining area) were as follows:

1. Scope 1: 31.19 Mt of carbon dioxide equivalent (Mt CO₂-e);

2. Scope 2: 2.79 Mt CO₂-e;

3. Scope 3: 455.62 Mt CO₂-e; and

4. Total: 489.6 Mt CO₂-e.

18. The estimated greenhouse gas emissions for the Stage 2 Extension Project (2022-2034) were:

1. Scope 1: 12.813 Mt CO₂-e;

2. Scope 2: 0.947 Mt CO₂-e; and

3. Scope 3: 205.423 Mt CO₂-e.

19. The characterisation of an emission as a “scope” is a reference to the characterisation, by the grouping of its source, of a type of emission. In that regard the IPC described each of the relevant scopes in the following terms:

1. Scope 1: direct emissions from owned or controlled sources of an organisation/development (Scope 1 Emissions);

2. Scope 2: indirect emissions from the generation of purchased energy electricity, heat and steam used by an organisation/development (Scope 2 Emissions); and

3. Scope 3: all other upstream and downstream emissions related to an organisation/development (Scope 3 Emissions).

These characterisations of the emissions by scope are adopted within this judgment.

Climate change

20. The climate is changing due to global warming, and it is greenhouse gases emitted by human activities that are driving climate change.

21. The primary anthropogenic greenhouse gases are carbon dioxide (CO₂), methane (CH₄), and nitrous oxide (N₂O) (collectively referred to as GHG). Atmospheric concentrations of all these GHG’s have risen since the 1960’s. CO₂ (the dominant form of GHG in the atmosphere driving current climate change) is now higher than at any other time humans have inhabited Earth, and global CH₄ emissions are also rising.

The Paris Agreement

22. On 9 November 2016, Australia ratified the Paris Agreement. Australia is one of 194 parties to the Paris Agreement.

23. Parties to the Paris Agreement, have made voluntary Nationally Determined Contributions (NDCs) to outline their commitments to meeting the goals of the Paris Agreement. NDCs form the basis for parties to achieve the objectives of the Paris Agreement and contain information on measures for reducing national emissions.

24. The IPC stated that it considered the Paris Agreement in paragraph 34 of the Statement of Reasons and referred to the Paris Agreement in section 5.5 of the Statement of Reasons.

25. The Articles of the Paris Agreement referred to in the parties’ Agreed Statement of Facts are as follows:

Article 2

(1)   This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

(a)   Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

…

Article 3

As nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to achieving the purpose of this Agreement as set out in Article 2. The efforts of all Parties will represent a progression over time, while recognizing the need to support developing country Parties for the effective implementation of this Agreement.

Article 4

(1)   In order to achieve the long-term temperature goal set out in Article 2, parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognising that peaking will take longer for developing country parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.

(2)   Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.

(3)   Each Party's successive nationally determined contribution will represent a progression beyond the Party's then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.

(4)   Developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.

…

(13)   Parties shall account for their nationally determined contributions. In accounting for anthropogenic emissions and removals corresponding to their nationally determined contributions, Parties shall promote environmental integrity, transparency, accuracy, completeness, comparability and consistency, and ensure the avoidance of double counting, in accordance with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.

Evidence

26. The evidence in this case was documentary.

27. The primary material to which the parties referred comprised of the IPC’s Statement of Reasons.

28. It was also agreed that the key issues to which the IPC had regard and as summarised in section 5 of the Statement of Reasons were: mining; subsidence; groundwater; surface water; GHG emissions; biodiversity, care and maintenance, rehabilitation and mine closure; economics; social costs and benefits; noise; air quality; traffic and transport; Aboriginal heritage; historic heritage; visual impacts; voluntary planning agreements with the Gunnedah Shire Council and the Narrabri Shire Council; and waste.

29. With respect to the findings on GHG emissions, the IPC made a number of findings dealing with each of the Scope 1, Scope 2 and Scope 3 Emissions as outlined in the Statement of Reasons. The findings relating to the Scope 3 Emissions upon which the Applicant particularly (but not exclusively) focussed were at paragraphs 169 and 170 of the Statement of Reasons which stated:

Scope 3 Emissions

169.   The Commission agrees with the Department and acknowledges that the mining of coal and its combustion is a major contributor to anthropogenic climate change, which has the potential to impact future generations. The Commission also agrees with the Department that the key areas for active management of GHG emissions within the development assessment and approval process for new projects in NSW are reductions in direct emissions and improved energy efficiency (Scope 1 and 2 emissions).

170.   The Commission acknowledges that while the Project’s Scope 3 emissions would contribute to anthropogenic climate change, they are more appropriately regulated and accounted for through broader national policies and international agreement (such as the Paris Agreement). The Commission notes that the GHG emissions associated with burning coal to produce energy are accounted for at the international powerplants where that combustion takes place. The Commission agrees with the Department that the fundamental principle of accounting is to avoid double counting and it must be noted that one entity’s Scope 3 emissions are another entity’s Scope 1 emissions. However, the Commission has considered all emissions associated with the Project (including Scope 3 emissions) in its assessment and determination.

30. With respect to the determination of the public interest, the IPC summarised the findings and observations on that topic (to which summary the Applicant did not object) as follows:

1. In considering whether the grant of development consent was in the public interest, the IPC “weighted the predicted benefits of the Application against its predicted negative impacts”;

2. The IPC accepted that State Government policy, including the 2020 Strategic Statement on Coal Exploration and Mining in New South Wales, “expressly support[ed] responsible coal production”;

3. Unless the proponent of the project could comply with the conditions imposed by the IPC on the grant of development consent, “the predicted negative impacts of the Application would warrant refusal of the Application”. Similarly, “if the Application were for a materially similar Project in a greenfield location without an existing mine, it is possible that the [IPC]’s weighing of the relevant impacts would warrant refusal of such an application”;

4. The Application “represent[ed] a responsible application for continued coal production and an orderly extension of the existing Narrabri mine”, subject in particular to “unprecedented conditions requiring ongoing management and limitation of Scope 1 greenhouse gas (GHG) Emissions”;

5. The IPC’s consideration of the public interest was “informed by consideration of the principles of ESD”;

6. The precautionary principle was “applied throughout the assessment of the Application, with environmental consequences being appropriately avoided, mitigated remediated or offset, as set out in the Application, the Department’s [Assessment Report] and the recommended conditions of consent”. The IPC “proposed additional measures … to further mitigate the impacts of the Project”;

7. The principle of inter-generational equity was considered in the IPC’s assessment of “the potential environmental, social and economic impacts of the Project”, including by the imposition of conditions “seeking to leverage established and emerging technologies to significantly mitigate the potential long-term environmental impacts of the Project”. The IPC found that, subject to those conditions, “the Project would appropriately balance the environmental, social and economic impacts of the present generation with those of future generations”;

8. The potential impacts of the Project on “biodiversity, including land clearing and loss of habitat”, were “a key consideration during the assessment of the Application”. The IPC found that “any potential impacts would be reasonably mitigated and/or offset to enable acceptable long-term biodiversity outcomes to be achieved”. It found that “the conservation of biological diversity and ecological integrity can be achieved through avoiding, minimising and offsetting biodiversity impacts”;

9. In its Assessment Report, the Department “proposed a mechanism by which GHG emissions per tonne of coal could be reduced”. The IPC followed that approach in its evaluation and the imposition of conditions. It found that, “when considering the current policy framework, scope of the application and assessment of costs and benefits, the Project would produce net positive social and economic benefits to the local region and NSW”; and

10. The IPC “g[ave] consideration to the principles of ESD in its assessment of each of the key issues, as set out in section 5”. It found that, “on balance, the Application [wa]s not inconsistent with ESD principles, and that the Project would achieve an appropriate balance between relevant environmental, economic and social considerations.” It further found that the “likely benefits” of the Project warranted the conclusion that “an appropriately conditioned approval [wa]s in the public interest”.

31. In addition, four volumes of documents were tendered that comprised the documentary material before the IPC, including but not limited to:

1. The Extension Project application and documents in support;

2. Submissions made by government instrumentalities and departments in connection with the Extension Project;

3. An assessment report from the NSW Department of Planning and Environment;

4. Written Submissions made in response to the public notification of the Extension Project;

5. Submissions (both oral and written) made to the IPC at the public hearing. These submissions included further supplementary submissions submitted consequent to the public hearing. Of particular reference in these proceedings were two reports prepared by Distinguished Honorary Professor Penny Sackett from the Australian National University Climate Change Institute relating to the Greenhouse Gas and Climate Implications of the Extension Project; and

6. The relevant planning and policy documents.

32. Whilst the additional documentary material was voluminous the parties only referenced a relatively small number of the documents to the extent that it was submitted that such material would assist in the determination of this matter.

Issues for determination

33. In its Amended Summons filed 12 August 2022, the Applicant sought the following substantive relief in relation to the Decision:

1. A declaration that the development consent granted by the Second Respondent on 1 April 2022 is invalid; and

2. An order in the nature of certiorari setting aside the development consent granted by the Second Respondent on 1 April 2022.

34. The sole basis of the Applicant’s claim was that the Decision was legally unreasonable. The claim of legal unreasonableness related both to the process of the making of the Decision and the Decision itself. The Applicant’s claim focussed on the issues raised in the determination of the Extension Project relating to the impacts of that project on climate change, in particular (but not exclusively) by the Scope 3 Emissions.

35. The crux of the Applicant’s case was that the IPC had before it unchallenged evidence from Professor Sackett (and others) that (Interim Findings):

The gravity of climate change impacts for NSW, Australia and the world

14   The climate of NSW is changing due to global warming.

15   Without substantial, concerted action, climate change poses a major threat to humanity and most living systems on Earth. While impacts are being observed now, they will become more pronounced over time.

16   The effects of climate change on the people and environment of NSW are expected to become more pronounced as the climate continues to change over this century.

17   Greenhouse gases (GHGs) emitted by human activities are responsible for essentially all of the global warming driving climate change.

18   The primary anthropogenic GHGs are carbon dioxide (CO₂), methane (CH₄) and nitrous oxide (N₂O). Atmospheric concentrations of all these gases have risen dramatically since the 1960s at an accelerating rate.

19   About 90% of the CO₂ emitted by humans per year is from the burning of fossil fuels: coal, gas, and oil.

20   The dominant form of GHG emissions (CO₂) driving current climate change is now higher than at any other time humans have inhabited Earth.

21   Global CH₄ emissions are also rising. CH₄ is 82.5 times more effective than CO₂ in trapping heat over a 20-year period.

22   Every tonne of CO₂ and other greenhouse gas emissions, including methane, adds to global warming.

23   Climate impacts are hitting harder and sooner than previous scientific assessments have expected.

24   The current level of global warming is about 1.2 degrees Celsius (°C) above pre-industrial levels.

25   Australia has warmed by 1.44 ± 0.24°C since national recording keeping began in 1910. Thus, global warming between 1.5°C and 2°C above 1850-1900 levels translates into rises of 2.1°C and 2.8°C for Australia.

26   Global warming of 1.1-1.2°C above pre-industrial levels has already resulted in:

(a)   47% of local extinctions reported across the globe during last century being attributed to climate change;

(b)   increased severity of storms and heat waves;

(c)   coastal inundation from rising sea levels and increased storm surge;

(d)   millions of people being displaced annually because of weather/climate disasters;

(e)   most years in Australia are now warmer than almost any year in the 20th century;

(f)   the frequency of very warm days in Australia has increased approximately fivefold compared to the period 1960-1989;

(g)   peak heatwaves that occurred only once per 30 years in pre-industrial times in Australia, can now be expected every 5 years;

(h)   in 2019, Australia recorded 33 days above 39 degrees – more than all such days recorded over the previous 60 years (1960-2018);

(i)   agricultural areas in NSW now experience runoff reduced by 15%, on average;

(j)   the cost of extreme weather disasters in Australia has more than doubled since the 1970s, reaching $35 billion for the decade 2010-2019;

(k)   globally some impacts are approaching irreversibility such as the impacts of hydrological changes resulting from the retreat of glaciers, or the changes in some mountain and Arctic ecosystems driven by permafrost thaw.

27   The Black Summer bushfires are one example of climate change driving extreme events. Australia’s Black Summer is consistent with previous scientific assessments dating back at least 30 years that human-caused climate warming will increase the duration, frequency and intensity of forest fires in southeast Australia. The Black Summer fires resulted in:

(a)   nearly 80% of all Australians being directly or indirectly affected;

(b)   the loss of 33 lives and the destruction of over 3,000 houses;

(c)   indirect health impacts attributed to smoke exposure include an estimated 417 lives lost and 3,151 hospitalisations. The short-term health costs associated with this smoke exposure is estimated to be $1.95 billion Australia-wide, with $1.07 billion attributed to NSW losses;

(d)   the longer-term premature mortality and economic burden from cumulative effects of smoke exposure will be much higher, by factors estimated to be between two and five;

(e)   the Australian food system is estimated to have suffered at least $4-5 billion in economic losses due to the Black Summer fires, with only about a third of this recovered through funding for bushfire recovery;

(f)   three billion individual native vertebrates perished, comprising 143 million mammals, 2.46 billion reptiles, 180 million birds and 51 million frogs;

(g)   37% of the state’s rainforests were fire-affected during Black Summer, including over half of the Gondwana Rainforests, an Australia World Heritage Area;

(h)   [NOT PRESSED]

28   The extent to which climate impacts will become more severe and life-threatening will depend on the level of emissions and global warming that is reached.

29   Regardless of future emission scenarios, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and the Bureau of Meteorology (BOM) report that Australia will certainly experience more extreme climate effects, including:

(a)   further warming, with more extremely hot days and fewer extremely cool days;

(b)   a decrease in cool‐season rainfall across many regions of the south and east of Australia, with more time spent in drought;

(c)   a longer fire season for the south and east and an increase in the number of dangerous fire weather days;

(d)   more intense short-duration heavy rainfall events throughout the country;

(e)   fewer tropical cyclones, a greater proportion of which will be of high intensity;

(f)   more frequent, extensive, intense and longer‐lasting marine heat waves, increasing risk of frequent and severe bleaching of Ningaloo Reef and the Great Barrier Reef;

(g)   oceans around Australia will continue to warm, rise and become more acidic;

(h)   ongoing sea level rise, with recent research on ice sheet melting revealing that sea level rise could be higher than previously assessed.

30   Rising global temperatures, extreme weather events, changes to rainfall and rising sea levels are all associated with a range of adverse health impacts. These impacts increase the incidence of heat related illness and heart failure, water borne illnesses, and pose risks to food supply by affecting food quality (nutrient value) and quantities (reduced agricultural yields) as well as contributing to the creation of optimal conditions for mosquito borne disease, changing ecosystems in a way which can increase the risk of zoonotic disease transmission and increase ground level ozone and air allergens, which increases risk of heart problems, stroke, asthma, and other respiratory diseases.

Global average temperature rise under the Paris Agreement

31   Australia is a signatory to the Paris Agreement which commits the global community to keeping warming to well below 2°C and pursuing efforts to limit the temperature increase 1.5°C.

32   Signatory nations to the Paris Agreement, including Australia, have made voluntary Nationally Determined Contributions (NDCs) to outline their commitments to meeting the goals of the Paris Agreement.

33   Based on current policies it is estimated that warming could go as high as 3.6°C with a best estimate of 2.7°C, i.e. current NDCs will not achieve the goals of the Paris Agreement.

Catastrophic climate scenarios

34   The Intergovernmental Panel on Climate Change (IPCC) is the international body for assessing science related to climate change.

35   All scenarios considered in the IPCC Sixth Assessment Report, including the lowest emission trajectory (SSP1-1.9), show that temperatures are more likely than not to reach or exceed 1.5°C of warming this century.

36   At approximately 1.5°C of global warming above preindustrial levels, in addition to the impacts already being experienced and those expected to occur under all emissions scenarios, Australia and NSW can expect:

(a)   peak heatwaves that occurred only once per 30 years in pre-industrial times in Australia, can be expected every 2.7 years;

(b)   6% of insects, 8% of plants, and 4% of vertebrates lose over half of their climatically-determined geographic living area;

(c)   what used to be Australia’s hottest year on record (2019) becomes an average year;

(d)   NSW has 2-4 more heatwave days per year than it currently experiences;

(e)   thousands of global locations will experience what are now considered `once-in- 100-years extreme-sea-level events’ at least once a year by 2100;

(f)   over the next 2000 years, global mean sea level will rise by about 2-3m if warming is limited to 1.5°C.

37   Natural systems will experience considerably greater impact as temperature rises increase:

(a)   in terrestrial ecosystems, 3 to 14% of species assessed will likely face very high risk of extinction at global warming levels of 1.5°C, increasing up to 3 to 18% at 2°C, 3 to 29% at 3°C, 3 to 39% at 4°C, and 3 to 48% at 5°C.

(b)   in ocean and coastal ecosystems, risk of biodiversity loss ranges between moderate and very high by 1.5°C global warming level and is moderate to very high by 2°C but with more ecosystems at high and very high risk, and increases to high to very high across most ocean and coastal ecosystems by 3°C.

(c)   very high extinction risk for endemic species in biodiversity hotspots is projected to at least double from 2% between 1.5°C and 2°C global warming levels and to increase at least tenfold if warming rises from 1.5°C to 3°C.

38   At approximately 2°C of global warming, Australia and NSW can expect to experience:

(a)   99% of the world’s coral reefs, including the Great Barrier Reef, are eliminated;

(b)   the number of insects, plants and vertebrates losing over half of their habitat doubles compared to losses at 1.5°C;

(c)   moderate risk of large-scale singular events leading to climatic tipping points;

(d)   the world’s most vulnerable people experience compounding crisis upon crisis;

(e)   considerably higher risk of impacts compared to 1.5°C with regard to:

i.   water stress and drought;,

ii.   shifts in biomes in major ecosystems, including rainforests;

iii.   changes in ecosystems related to the production of food;

iv.   deteriorating air quality;

v.   declines in coastal tourism;

vi.   loss of coral reefs, sea grass and mangroves;

vii.   disruption of marine food webs, loss of fin fish, and ecology of marine species;

viii.   heat related mortality and morbidity;

ix.   ozone-related mortality.

(f)   Black Summer-like weather conditions are four times more common than in 1900;

(g)   Sydney experiences summer temperatures of 50°C;

(h)   4-8 more heatwave days per year than it currently experiences;

(i)   agricultural areas in NSW experience runoff reduced by 30%.

39   According to the IPCC, holding global warming to well-below 2°C, requires “deep reductions in CO₂ and other greenhouse gas emissions occur in the coming decades”. In the absence of such reductions, further warming is expected.

40   Higher emission scenarios considered by the IPCC all carry a significant risk of global warming of at least 3°C and up to 4.4°C by 2100.

41   At approximately 3-4°C of global warming, Australia and NSW can expect to experience:

(a)   most of the world’s ecosystems are heavily damaged or destroyed;

(b)   extreme weather events are far more severe and frequent than today;

(c)   large areas of the world become uninhabitable, causing migration and conflict;

(d)   aggregated global impacts significantly damage the entire global economy;

(e)   peak heatwaves that occurred only once per 30 years in pre-industrial times in Australia expected annually;

(f)   megafires to occur in southeast Australia irrespective of whether drought occurs simultaneously;

(g)   many locations in Australia become uninhabitable due to water shortages;

(h)   many Australian properties and businesses are uninsurable. Severe impacts to both flora and fauna cause many of Australia’s ecological systems to become unrecognisable;

(i)   sea level rise transforms Australia’s coastal regions, putting the health and wellbeing of many people at severe risk;

(j)   NSW has one to two more heatwave weeks per year than it currently experiences;

(k)   agricultural areas in NSW experience runoff reduced by 45-60%;

(l)   moderately high risk that a cascade of tipping points in the climate system drives the Earth system into a Hothouse Earth state not seen for millions of years, irrespective of humanity’s late attempts to reduce emissions.

The costs of climate change to the people and the economy of NSW

42   [NOT PRESSED]

43   [NOT PRESSED]

44   [NOT PRESSED]

45   The climate change externalities of the Project will be borne disproportionately by younger and future generations, with no clear recourse or path to remediation.

Current emissions trajectory

46   The world is currently emitting greenhouse gases on a trend that would lead to substantially more dangerous climate change.

47   The primary reason why current global policies place the world on track for about 3°C of warming is that future fossil fuel production is not being curtailed fast enough.

48   The National Greenhouse and Energy Reporting Scheme (NGERS) is a national reporting framework for reporting on greenhouse gas emissions, but does not set any requirements or targets for emissions reduction.

49   Australia’s Long-Term Emissions Reduction Plan is described as “A whole-of- economy Plan to achieve net zero emissions by 2050”. The Plan does not include any targets or proposal to limit total emissions to a level that will ensure the goals of the Paris Agreement are met.

50   [NOT PRESSED]

51   A 2021 special report by the International Energy Agency (IEA) specifically designed for the global energy sector as a roadmap for achieving a net zero pathway by 2050 identified that beginning in 2021 no new coal mines or mine extensions can be approved for development.

36. It was contended that in light of the substance of the Interim Findings the IPC acted unreasonably in that it:

1. Failed to make findings in the terms of the Interim Findings;

2. In failing to make the Interim Findings it acted unreasonably in that it:

1. Was unable to properly consider the harm of the Extension Project on climate change and any attempt to do so was unreasonable;

2. It unreasonably asked itself the wrong question, rather than assessing the impacts of the Extension Project on climate change, it asked who was best placed to regulate and account for GHG under international carbon accounting;

3. It unreasonably arrived at a conclusion that the approval of the Extension Project would be in the Public Interest which conclusion was reached without consideration of the tangible environmental impacts of the contribution of the Extension Project to anthropogenic climate change;

4. It relied upon conditions imposed upon the approval of the Extension Project to ameliorate the Extension Project’s impacts on climate change however, the conditions did not address the Extension Project’s Scope 3 Emissions; and

5. It unreasonably concluded that the Extension Project was consistent with the principles of Ecologically Sustainable Development (ESD) when on the material the subject matter of the Interim Findings could only lead to a reasonable conclusion that it was not consistent with the principles of ESD.

3. The combination of the above errors rendered the ultimate decision to approve the Extension Project legally unreasonable as such errors were material to the ultimate decision.

37. The IPC limited its role in the proceedings to making submissions only in relation to the scheme for the grant of development consent under the EP&A Act and the Court’s jurisdiction to conduct judicial review of the Decision and power to grant relief in the nature of certiorari. The substantive opposition to the Applicant’s case was conducted by Narrabri Coal.

Applicant’s submissions

Principles of legal unreasonableness

38. The High Court has addressed legal reasonableness in a number of recent decisions, including Minster for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and, more recently, ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17). In ABT17, the High Court explained that the implied condition of reasonableness “is not confined to why a statutory decision is made; it extends to how a decision is made”: at [19]. There must be, not only an “intelligible justification” for the decision, but also the decision- maker must come to that decision “through an intelligible decision-making process”: at [20].

39. In considering whether a decision is legally unreasonable the following principles are of assistance:

1. A decision will be legally unreasonable if “… upon the material before the decision-maker, a decision to which no reasonable person could come”: ABT17 at [19], or if it is a decision which “no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) at [5], or if the statutory power has been “abused by the decision-maker”, or the decision is “so unreasonable that no reasonable person could have arrived at it”: Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464 (Plaintiff S183) at [31];

2. So too, legal reasonableness requires that a “satisfaction or opinion of a decision-maker about the existence of a matter ... be reasonably formed”: Stretton at [5];

3. Legal unreasonableness can arise where a decision-maker reaches “an unreasonable decision on the facts of a particular case”, even though the decision-maker applies “the correct construction of the legislation”: BRF038 v Republic of Nauru (2017) 91 ALJR 1197 (BRF038) at [45];

4. Legal unreasonableness can also arise from “disregarding [a] plain fact” on the materials before the decision-maker: Minister for Immigration and Border Protection v SZSNW (2014) 229 FCR 197 (SZSNW) at [84];

5. It can also arise from the making of findings or inferences which are not supported by logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (Applicant S20) at [34]; and

1. Legal error, including legal unreasonableness, in an overarching decision may arise because of unreasonable “findings on the way” to that overarching decision: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [132]; BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 (BZD17) at [34].

40. The scope of legal reasonableness is also fundamentally affected by the statutory context: Li at [67]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) at [48].

41. The IPC’s decision-making power was not at large. The IPC had a power either to grant or refuse consent: s 4.38(1) of the EP&A Act. Like other statutory powers, the power conferred by s 4.38(1) was subject to the implied condition that the power be exercised within the bounds of reasonableness: Li at [23]-[29], [63], [67], [88]-[93]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [11]; Comcare v Banerji (2019) 267 CLR 373 at [84]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [71]. Further, that power, like all statutory powers, was confined by matters of text, context and purpose: NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [56]; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505; and Li at [23] and [67].

42. Applying those principles, in this case, legal unreasonableness may be exposed by unreasonable findings in respect of the matters set out in s 4.15(1) of the EP&A Act, or in respect of the building blocks upon which findings as to those matters had been made. Legal error in those building blocks, if “material”, in the sense that that concept has been understood in administrative law, vitiates the ultimate decision.

Unreasonableness in failure to make Interim Findings

43. Neither Respondent disputed that the Interim Findings were findings that were capable of being supported by material before the IPC or that the subject matter of the Interim Findings were matters upon which there was contrary evidence.

44. The Applicant contended that it was unnecessary for it to establish that each and every of the listed Interim Findings were required to be made. It was open to the Court to find that the failure to make any one (or more) or a combination of a lesser number of Interim Findings rendered the Decision legally unreasonable and, therefore, invalid. The Applicant, however, did not address on the individual Interim Findings, rather it addressed on such findings in a global manner.

45. The Applicant accepted that there was no statutory requirement that required the IPC to give written reasons identifying all of its findings or considerations undertaken in arriving at such findings.

46. However, it contended that as each of the Interim Findings were matters, the subject of the public submissions, more particularly in the material presented by Professor Sackett, the IPC was obliged to consider the public submissions made to it: s 4.15(1)(d) of the EP&A Act.

47. Having regard to the context of the legislative scope and purpose of the EP&A Act it was legally unreasonable for the IPC not to make the Interim Findings. The IPC’s task was prescribed by s 4.15 of the EP&A Act: see also s 4.40. As such it was incumbent on the IPC to:

1. Give focal consideration to, inter alia:

1. “the provisions of…any environmental planning instrument”: s 4.15(1)(a), “the likely impacts of [the] development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”: s 4.15(1)(b);

2. “any submissions made in accordance with the Act or the regulations”: s 4.15(1)(d); and

3. “the public interest”: s 4.15(1)(e).

2. In giving such consideration the IPC was obliged to take into consideration and “it had to inform itself sufficiently to be able to take” those matters into account: Weal v Bathurst City Council (2000) 111 LGERA 181 (Weal) at [80];

3. The task called for by s 4.15 of the EP&A Act involved not only adverting to the matters set out in subs (1); it required the IPC to form “an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration”: Weal at [80]. The process of determination being that as described by Preston CJ in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining (2013) 194 LGERA 347 (Bulga) at [36] and [38]:

36   The process of decision-making under s 75J of the EPA Act therefore involves: first, identification of the relevant matters needing to be considered; secondly, fact finding for each relevant matter; thirdly, determining how much weight each relevant matter is to receive, and fourthly, balancing the weighted matters to arrive at a managerial decision.

…

38   Having identified the relevant matters which must or may be considered, the decision-maker needs, as a second step, to undertake fact finding and inference drawing so as to enable consideration of these matters. On a merits review appeal, facts are found and inferences are drawn based on the evidence before the reviewer, in this case the Court. Amongst the relevant matters to be considered in determining an application for approval to carry out a project are the likely impacts of the project on the environment. The process of fact finding and inference drawing to enable consideration of these impacts includes ascertaining the nature and extent of each type of impact and the nature and efficacy of measures proposed in the application for approval, or that could be imposed as conditions of approval, to prevent, mitigate or compensate for each type of impact.

4. In giving such consideration the objects of the EP&A Act were also considerations which were, at the least, permissible: Carstens v Pittwater Council (1999) 111 LGERA 1 (Carstens) at [20] and [25]. In this case, the IPC determined that the objects were mandatory relevant considerations: Statement of Reasons at page 8, Table 1;

5. In forming a view as to the “public interest” under s 4.15(1)(e) of the EP&A Act, the IPC was obliged to proceed on the basis that “it is in the public interest, in determining a development application, to give effect to the objects of the Act”: Carstens at [74].

48. The subject matter of the Interim Findings were essential to the reasonableness of the Decision as they were a key finding of primary fact the existence of which was a necessary finding on those building blocks which contributed to a conclusion in respect of those matters as set out in s 4.15(1) of the EP&A Act. By failing to make the Interim Findings the IPC failed to undertake the necessary fact finding for each relevant matter as identified in Bulga.

49. In failing to make the Interim Findings the IPC failed, inter alia, to make findings which any reasonable decision-maker would have made and which it was obliged to make, as to:

1. The likely impacts (harm) of the Extension Project on the climate and the harmful consequences thereof;

2. The public submissions made to the IPC;

3. The consistency or otherwise with the principles of ESD; and

4. The harm the Extension Project would inflict, or was likely to inflict, on the public interest which was and is grave.

Likely harm

50. The IPC was obliged to consider the “likely impacts” of the Extension Project. It accepted that the mining of coal and its combustion was a major contributor to anthropogenic climate change and that the Scope 3 Emissions of the Extension Project would contribute to anthropogenic climate change: Statement of Reasons at paragraphs 169 and 170. By failing to make the Interim Findings the IPC failed to take the further necessary step to consider, evaluate and/or quantify the tangible and catastrophic impacts of the Extension Project’s contribution to dangerous climate change for the environment and the people of NSW, as required under s 4.15(1)(b) of the EP&A Act.

51. As was identified in the material before the IPC, and set out in the Interim Findings approving the Extension Project was inconsistent with the State and national policies that required keeping global warming “well below 2°C”. The tangible and catastrophic consequences of a world above 1.5°C, towards 2°C and beyond, were summarised in Professor Sackett’s submission to the IPC. Those consequences, as identified, were the likely impacts of the Extension Project on the evidence that was before the IPC. The IPC was thus obliged to consider that the likely impacts of the Extension Project included driving a ‘Hothouse Earth’ scenario, what Professor Sackett described as “an unrecognisable landscape for current ecosystems and human civilisation”.

52. A reasonable decision-maker would find that such a scenario threatened the orderly and sustainable planning and development of NSW under the EP&A Act. The IPC, however, took no steps, following its finding that the Extension Project would contribute to anthropogenic climate change, to assess the likely impacts of anthropogenic climate change (to which the Extension Project would materially contribute) on NSW and the Extension Project locality. That failure was itself an error, but it was brought about by the IPC’s failure to make the Interim Findings it ought to have made.

Asked wrong question

53. In the Statement of Reasons, the IPC found in respect to the Scope 3 Emissions that:

1. The mining of coal and its combustion was a major contributor to anthropogenic climate change, which had the potential to impact future generations; and

2. The Scope 3 Emissions of the Project would contribute to anthropogenic climate change.

54. These findings were critical in that the IPC accepted that the Scope 3 Emissions from the Extension Project would contribute to anthropogenic climate change. However, the IPC took no steps following such finding to assess the likely impacts of anthropogenic climate change (to which the Project would materially contribute) on NSW and the Extension Project locality.

55. Instead of engaging with the most significant and harmful impacts of the Extension Project the IPC focussed upon the wrong issue, namely matters of national and State policy. While it was not inappropriate for the IPC to consider State and national policies to the extent they were consistent with the EP&A Act, that did not obviate the clear need for proper consideration of the evidence before the IPC bearing on impacts, and active consideration of the matters set out in s 4.15(1) of the EP&A Act, including the likely impacts of the Extension Project. NSW’s Net Zero Plan, for example, noted that “[m]ining will continue to be an important part of the economy into the future and it is important that the State’s action on climate change does not undermine those businesses and the jobs and communities they support”. This position provides no insight into the tangible and catastrophic impacts of the Extension Project due to its contribution to anthropogenic climate change, which before the IPC were the subject of unchallenged evidence.

56. Similarly, the IPC purported to address the Extension Project’s acknowledged Scope 3 Emissions by noting that “they are more appropriately regulated and accounted for through broader national policies and international agreement (such as the Paris Agreement)” and that “double counting” must be avoided. This approach involves asking the wrong question. The IPC was bound under s 4.15(1)(b) of the EP&A Act to consider what the likely impacts of the Extension Project (including its Scope 3 Emissions and the impacts of those emissions) were on NSW, not who is best placed to regulate and account for them under international carbon accounting. An impact is still an impact under s 4.15(1)(b) even if the impact could be regulated (but is not being regulated) by some other international body. Further, the IPC ignored the cogent unchallenged submission that “the suggestion … that a carbon budget analysis is associated with double-counting represents a serious misconception of this scientific concept”.

57. It was accepted that IPC was also required to consider the provisions of any environmental planning instrument. One of the environmental planning instruments that was relevant to the application was the State Environmental Planning Policy (Resources and Energy) 2021 (NSW) (Resources SEPP). Clause 2.20 of the Resources SEPP at the relevant time provided:

2.20   Natural resource management and environmental management

(1)   Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following—

(a)   that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,

(b)   that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,

(c)   that greenhouse gas emissions are minimised to the greatest extent practicable.

(2)   Without limiting subsection (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.

58. Clause 2.20 imposed an obligation on the IPC to consider all GHG emissions including Scope 3 Emissions. It was also required to consider State or national policies. However, a requirement to consider such policies did not overcome the obligation to consider the likely harm upon the climate of the emission of GHG’s including Scope 3 Emissions. An application of the policy provisions did not entitle the IPC to ignore the consideration of harm to the application of the policies.

59. In summary, the base finding that a reasonable decision-maker should have made on the unchallenged evidence and having regard to the Interim Findings which were primary facts was that the likely impacts of the Extension Project on the environment, NSW society, and the NSW economy were grave. That finding ought to have been made by the IPC having regard to the conclusion that the Extension Project contributed to climate change coupled with the findings the IPC ought to have made as to the catastrophic impacts of climate change on NSW. At the least, there is a realistic possibility that this finding would have been made.

Public interest and ESD

60. Each of the Interim Findings was directly relevant to the likely impacts of the Extension Project and the public interest and thus, was a matter that the IPC ought to have addressed in findings. If accepted by the IPC, each, individually and cumulatively, could as a matter of realistic possibility have led to a different decision. Each was a finding of primary fact that any reasonable decision-maker would have made: ss 4.15(1)(d) and 4.40 of the EP&A Act.

61. The IPC accepted that it was required to determine whether the Extension Project was consistent with the objects of the EP&A Act and concluded that the Extension Project was consistent with those objects. That finding was legally unreasonable.

62. The IPC was obliged to have regard to the “public interest”: s 4.15(1)(e) of the EP&A Act. The IPC concluded that “[t]he likely benefits of the Extension Project warrant the conclusion that an appropriately conditioned approval is in the public interest”: Statement of Reasons at page 9, Table 1. This conclusion was unreasonable for three compounding and interdependent reasons.

63. First, the IPC concluded that the Extension Project “would achieve an appropriate balance between relevant environmental, economic and social considerations and the likely benefits of the Extension Project”: Statement of Reasons at page i. This conclusion was legally unreasonable because the IPC failed to account for, and accept, cogent and unchallenged evidence that the Extension Project would likely result in catastrophic harm to the environment and the people of NSW, arising from its climate impacts. Further, the IPC’s failure even to make findings as to the likely climate impacts of the Extension Project meant that this conclusion was reached without consideration of the tangible environmental impacts of the contribution made by the Extension Project to anthropogenic climate change. Moreover, in considering social costs and benefits, the IPC failed to consider and make findings in respect of the “incalculable” social costs that would result from crossing tipping points in the climate system as identified in the material before it including the submission of Professor Sackett that:

1. 2°C of global warming represents “moderately high risks” of crossing those tipping points; and

2. Approval of the Extension Project was “inconsistent with warming well below 2°C”.

64. No reasonable decision-maker, faced with the cogent and unchallenged evidence before the IPC, could have reached the conclusion that this Extension Project was in the public interest. The only reasonable conclusion was that the Extension Project would exacerbate climate change and increase the risk of crossing tipping points in the climate system, which would entail “unthinkable and incalculable” social costs.

65. Secondly, the IPC relied on conditions placed on the Extension Project as a safeguard against environmental harm. The IPC concluded that “without compliance with the conditions imposed by the Commission … the predicted negative impacts of the Application would warrant refusal of the Application”: Statement of Reasons at page 8, Table 1. With respect to these conditions, any reasonable decision-maker should have concluded that they would do little to limit Scope 1 and Scope 2 Emissions and that they had no impact on the Extension Project’s Scope 3 Emissions.

66. Thirdly, for reasons outlined below, the only reasonable conclusion was that the Extension Project was inconsistent with the principles of ESD contrary to what is said by the IPC in the Statement of Reasons at page 9, Table 1.

67. Had the IPC not committed the compounding errors, it is reasonably possible that it would not have reached the conclusion that the Extension Project was in the public interest. A reasonable decision-maker would not conclude that the potential short-term economic or social benefit from the Extension Project could outweigh the catastrophic environmental, social and economic harm of contributing to the exacerbation of anthropogenic climate change above 1.5°C.

68. Evaluating the consistency of the Extension Project with the objects of the EP&A Act required consideration of ESD, which in turn required consideration of the precautionary principle – namely, the principle that a lack of full scientific certainty should not be a reason for postponing measures to prevent environmental degradation if there are threats of “serious or irreversible damage”.

69. ESD also incorporated the principle of inter-generational equity. For the reasons outlined above, the conditions imposed upon the Extension Project did not adequately mitigate the risks posed to current and future generations arising from the Extension Project’s climate impacts, and no reasonable decision-maker could have concluded otherwise.

70. Any reasonable decision-maker, having made the Interim Findings would (and certainly as a matter of realistic possibility could) have concluded that approval of the Extension Project was not consistent with the EP&A Act’s objects.

Ultimate decision to approve the Extension Project was unreasonable

71. The EP&A Act was designed to facilitate the orderly and planned development of the State, in the public interest, and for the benefit of current and future generations.

72. The evidence before the Court and the IPC at the time of the Decision was unequivocal – the unfolding climate crisis was destabilising the very foundations on which our environment, society and economy depend. It is impossible to achieve the objects and purpose of the Act in an unstable climate. In 2022, the EP&A Act must be understood as permitting only those planning decisions that are consistent with a safe and stable climate. Decisions that are inconsistent with that outcome are inconsistent with the Act itself, are legally unreasonable, and are not and cannot be authorised by the Act.

73. The errors identified above were material, in the sense that if they had not been made, the IPC may well have reached a different conclusion on the critical interim issues of the likely impacts of the Extension Project; whether the Extension Project was in the public interest; and whether the Extension Project was consistent with the objects of the EP&A Act particularly with the principle of ESD.

74. If the IPC had reached a different conclusion on these issues, it is likely to have reached a different conclusion on the ultimate question of whether to approve the Extension Project. The Extension Project was approved in the face of cogent and unchallenged evidence regarding the catastrophic impacts of climate change and the likely contribution of the Extension Project thereto.

75. The IPC is an active part of the anthroposphere. In 2022, every decision it makes on coal mining developments determines the relative speed, severity and irreversibility of the unfolding crisis. The evidence before the Court was such that it is open to the Court to find that the decision to approve any significant coal mining development is now legally unreasonable, at least where the evidence is as it was before this decision-maker. However, it is not necessary for the Court to go so far in order to resolve the present case. It is sufficient to conclude that both the process and the outcome in respect of the Decision in issue here were legally unreasonable, and the Decision should be set aside.

76. The Applicant’s primary submission was that it was simply not legally open to approve the Extension Project to run for 20 years emitting the level of GHG emissions into the atmosphere that the uncontroversial evidence before the IPC estimated that it would emit. Having regard to the statutory context for the Decision which encompassed the EP&A Act as a whole, including the objects and s 4.15, the Decision was legally illogical and irrational and the IPC adopted a decision-making path which no reasonable decision-maker could lawfully adopt in the face of the evidence that was before it.

77. The evidence before the IPC was that the coal mined by the Extension Project would have the inevitable consequence that such coal would be burned. Therefore, as a matter of cause and effect, a reasonable decision- maker would have to consider the effect of Scope 3 Emissions and that as a consequence of the Extension Project Scope 3 Emissions would be released into the atmosphere with the consequential adverse effect on climate change. A decision-maker engaged in determining whether to approve the Extension Project would be acting in a legally unreasonable manner if it did not take the impact of the Scope 3 Emissions into account in deciding whether or not to approve the Extension Project.

78. The evidence that was before the IPC was unequivocal as to the effect that the unfolding climate crisis had, and that it was destabilising the environment and the foundations of our society and economy. Consistent with those findings it was impossible to achieve the objects and purpose of the EP&A Act in an unstable climate. Given that evidence, decisions that were fundamentally inconsistent with a safe and stable climate are inconsistent with EP&A Act itself and were thus outside the bounds of what a reasonable decision-maker could decide.

79. In summary, the base finding that a reasonable decision-maker should have made on the unchallenged evidence was that the likely impacts of the Extension Project on the environment, society, and the economy of NSW were grave. That finding ought to have been made by the IPC having regard to the conclusion that the Extension Project contributed to climate change and the evidence of Professor Sackett as to the catastrophic impacts of climate change on NSW.

Narrabri Coal’s submissions

Principles of legal unreasonableness

80. The test for legal unreasonableness remains a necessarily “stringent” one: Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541 (SZVFW) at [11] per Kiefel CJ; see also at [52] per Gageler J. In Stretton, the Full Court of the Federal Court emphasised the importance of statutory context in determining whether an exercise of statutory power was unreasonable. As Allsop CJ explained at [12], a court’s task on judicial review was “not to assess what it thinks is reasonable and thereby conclude … that any other view displays error” but rather “to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful”.

81. The High Court similarly emphasised that the content of legal unreasonableness in any given case is informed by the scope, purpose and objects of the relevant statute. Nettle and Gordon JJ in SZVFW stated that error may be identified when the result “is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances”: at [83]. The test for legal unreasonableness is thus inevitably “context-specific”: SZVFW at [52]. That leads to a decision-maker’s reasons being a “focal point” for assessment of reasonableness. It will be “a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power”: SZVFW at [84].

Unreasonableness in failure to make Interim Findings

82. The Applicant’s case is founded on alleged legal unreasonableness in failing to make a large number of findings of primary fact which are set out in the Interim Findings, on the basis that these are “building blocks which contribute to a conclusion” in relation to matters in s 4.15(1) of the EP&A Act. Unless the Applicant can establish that it was unreasonable not to find those particular primary facts, the Applicant cannot succeed in showing that the failure to make the Interim Findings or the Decision was legally unreasonable.

83. The Applicant has been unable to identify any case in which legal unreasonableness has invalidated a decision based on a failure to make a series of specific findings of primary fact of the type it alleges. The sole case it cites in relation to a failure to make findings of primary fact, Payne v Deer [2000] 1 Qd R 535 (Payne), involved a “failure to pay appropriate regard” to a magistrate’s maternal responsibilities, and the position of her five children as part of that, in considering whether she should be required to relocate from Brisbane to Townsville within a matter of weeks from her appointment: at [25]. The circumstances in relation to the magistrate’s five children “overwhelmed” the other aggregation of relevant circumstances which influenced the Chief Magistrate: at [22]. Properly understood, Payne represents an instance of an “obviously disproportionate response” by a decision-maker, whereby the Chief Magistrate exercised his power in a “disproportionately arbitrary” manner by “fail[ing] to give adequate weight to a relevant factor of great importance”. It is not an example, still less authority, for the proposition that legal unreasonableness in exercising the power to grant development consent under the EP&A Act may be established by a failure to make an extensive series of specific findings of primary fact, on the basis that they were contained in the material submitted by an objector.

84. The Applicant’s argument is not advanced by pointing to judicial recognition that a conclusion of jurisdictional error might be reached by showing that findings or reasoning “along the way” to a decision-maker reaching a conclusion are illogical or irrational. Here the Applicant makes no attempt to demonstrate that the findings of fact that were actually made by the IPC in relation to GHG emissions were illogical or irrational.

85. The Applicant has not abandoned its reliance on a duty to make each of the findings set out in the Interim Findings (and unreasonableness flowing from a failure to do so). Those statements relate to a variety of issues of climate change science, such as the causes of climate change and climate change trends. Plainly, the IPC did not make findings in such terms. However, the absence of specific findings along these lines needs to be assessed in its proper context. As to the legal context, the IPC was under no express or implied obligation to make findings of any particular kind. It was obliged to carry out the evaluation required by s 4.15 of the EP&A Act by having regard to various matters (including the voluminous submissions that were made to it on various topics), leading to a determination to grant consent or refuse consent.

86. As to the factual context, the IPC was not faced with a relevant dispute (for example, between rival expert submissions), let alone one which it regarded as necessary to resolve, about the science of climate change, the current or likely future extent of global warming or the gravity of the adverse consequences of climate change. As such, it is unsurprising that the Statement of Reasons does not contain detailed specific findings on issues of climate change science. Nor can the IPC reasons be read as involving any implicit rejection of the core factual contention that anthropogenic climate change poses serious risks to the environment. The IPC's determination might reflect a different policy response to balancing the various aspects of the public interest from that advanced by the Applicant and by Professor Sackett. But that is a different matter.

87. The Applicant must establish that legal reasonableness required the IPC to make each and every one of those findings. It offers three reasons for doing so. All of them should be rejected.

88. The first is that the findings were the subject of submissions that the IPC was obliged to consider. The statutory obligation to consider submissions made in accordance with the EP&A Act has never been regarded as extending to require acceptance of the content of such submissions, or an obligation to make specific factual findings on every matter addressed in submissions. It does not follow from this obligation that the IPC was required to make a finding about each contention and underlying factual assertion contained in each submission. In any event, the Applicant does not allege a failure to consider any submission or a breach of procedural fairness. The IPC expressly stated that it had carefully considered all of the public submissions and comments received, as well as oral presentations at the public hearing. The IPC was plainly cognisant of the submissions objecting to the Extension Project on the basis of GHG emissions and the contention that approval would be inconsistent with emission reduction targets.

89. Secondly, the Applicant relies on those factual findings being supported by “unchallenged compelling evidence” from Professor Sackett. The materials before the IPC in fact included various documents addressing alternative responses to GHG emissions and climate change. While it is true that there was no other expert evidence concerning climate science before the IPC, this does not mean that the IPC was obliged to make specific factual findings in accordance with Professor Sackett's evidence. This was not an adversarial, adjudicative process in respect of pleaded issues. The IPC is an administrative decision-maker charged with undertaking a broad-ranging evaluation of the public interest, informed by a multitude of factual and policy considerations and by all of the relevant materials before them. The IPC’s task was an evaluative one in relation to which it had an “area of decisional freedom”. The Applicant did not allege that in undertaking that task the IPC failed to consider any of the matters required to be considered under the EP&A Act.

90. The suggestion that legal reasonableness required the IPC to make specific factual findings based on unequivocal acceptance of Professor Sackett’s views also assumes that the IPC was required to consider the matter in the way framed by Professor Sackett, not only in factual terms but also in policy terms, to the extent that this was the only legally reasonable way of approaching the evaluative task. That approach misconceives the nature of the task performed by the IPC. It also overlooks that the appropriate framework in which to assess the supposed irrationality of the approach adopted by the IPC is the State and national policy settings concerning GHG emissions, to which the IPC was required to have regard in considering the assessment of those emissions.

91. Those settings point in the direction of the Paris Agreement and State and national efforts consistent with the implementation of that Agreement and achievement of Australia’s NDC pursuant to that Agreement, as the global mechanism for combatting climate change by reducing GHG emissions. The parties to the Paris Agreement aim to reach peak global emissions “as soon as possible” and then undertake rapid reductions to “achieve a balance between anthropogenic emissions by sources and removals by sinks in the second half of this century.” This international approach, endorsed by Australian governments, assumes that for many years yet there will be continued emission of GHGs, including as a result of consumption of substantial fossil fuels. No doubt many people including the Applicant would prefer a different policy response, involving a different balance between social, economic and environmental considerations, such as a steeper path to peak global emissions or even an immediate cessation of the consumption of fossil fuels. Some may also prefer a structurally different policy response in terms of restricting the local production of fossil fuels, presumably with a view to exerting some indirect influence on the rate of consumption of fossil fuels in other countries, even though the Paris Agreement seeks to regulate the problem of climate change in a coordinated fashion by regulating emissions (and hence, in this context, consumption of fossil fuels) at the national level, without controlling mining of products that might lead to emissions. But the fact that alternative policy responses of this kind could be adopted can hardly be said to demonstrate that it is irrational or unreasonable to evaluate the public interest by reference to the prevailing policy approach that aligns with the framework of the Paris Agreement.

92. The Paris Agreement requires parties to submit new or updated NDCs (which set out the contribution each country is nationally determined to make towards the global “well below 2°C” goal) every five years. It does not prescribe the measures or mechanisms by which a particular country is to facilitate the achievement of its NDC. The Paris Agreement recognises the importance of avoiding double counting of emissions. In respect of overarching obligations, it requires parties to ensure the avoidance of double counting consistent with the guidance adopted by the Conference of the Parties.

93. By contrast, the Applicant contends that “any reasonable decision-maker” would have made a series of findings reflecting failure of the Paris Agreement to achieve its goals, including a finding that “current NDCs will not achieve the goals of the Paris Agreement” and that “current global policies place the world on track for about 3°C of warming”, the “primary reason” for which is that “future fossil fuel production is not being curtailed fast enough”. The Applicant also says that “any reasonable decision-maker” would have made findings as to the inadequacy or failure of State and national policies to reduce GHG emissions. Those findings include that the Commonwealth Emissions Reduction Plan lacks “any targets or proposal to limit total emissions to a level that will ensure the goals of the Paris Agreement are met”, and that “NSW Government policies and plans … [do not limit] total emissions to a level that will ensure the goals of the Paris Agreement are met”. The Applicant thus contends that, notwithstanding that the IPC was obliged to have regard to applicable State and national policies concerning GHG emissions, legal reasonableness required that it find those instruments to be deficient, and further find that to the extent they sought to achieve compliance with Australia’s NDC under the Paris Agreement, that too was inadequate or deficient, because current NDCs would not achieve the goals of the Paris Agreement. The Applicant says that legal reasonableness required an extensive series of specific findings about the costs and potential future consequences of climate change, the ultimate logic it urges being reflected in the proposition that “beginning in 2021 no new coal mines or mine extensions can be approved for development”. That is inconsistent with the logical framework within which the IPC was required to make its decision. But it is sufficient to observe that there is no sound basis for the proposition that the IPC was compelled to agree with that policy position in respect of coal production as the only legally permissible attitude that could be adopted on that topic.

94. The IPC recognised that anthropogenic climate change was a concern, including because of its potential to impact future generations, but also found that emissions reduction was managed globally via the framework of the Paris Agreement, with national policies in place to achieve emissions reduction targets. The IPC found that the Extension Project’s Scope 3 Emissions were “more appropriately” regulated via those mechanisms. The Applicant may take a different view of that political question. But it has not sought to say that this reflects a misunderstanding of the Paris Agreement or any of the policies the IPC was required to consider. With that national and international framework for emissions reduction being in place (and not compelling the refusal of fossil fuel extraction projects such as the Extension Project), neither logic nor legal reasonableness required the IPC to make a series of detailed findings of the type identified in the Amended Summons about the gravity of climate change, catastrophic climate change scenarios and costs or the likelihood of substantially more dangerous climate change given current emissions trends.

95. The third reason the Applicant gives for why legal reasonableness required the making of factual findings as set out in the Interim Findings is that they were “directly relevant to the likely impacts of the Extension Project and the public interest” and thus, ought to have been addressed. Simply because a submission relates to a subject matter that a decision-maker is required to take into consideration does not impose an obligation to make factual findings about particular contentions in that submission, let alone at the level of specificity contended for. This submission adds nothing to the Applicant’s other arguments contending that reasonableness required the making of its preferred findings of primary fact.

96. The Applicant’s submissions concerning likely impacts of the Extension Project were premised upon the unpleaded contention that reasonableness required the IPC to accept Professor Sackett’s evidence that approving the Extension Project was inconsistent with keeping global warming “well below” 2°C. The Applicant does not contend that the IPC was obliged to make a finding in these terms. Without such a finding of fact – which legal reasonableness did not require, given the IPC accepted the Paris Agreement’s goals and framework for reducing emissions – it is not possible to discern how logic required the IPC to consider that likely impacts of the Extension Project included “driving a ‘Hothouse Earth’ scenario”. There was nothing unreasonable about the IPC taking the view that global emissions reduction is managed via the Paris Agreement, to which Australia is a party, for the purpose of achieving the global commitment under that agreement to keeping global warming “well below” 2°C. The Applicant’s preferred Interim Findings about likely impacts of the Extension Project would necessitate the IPC assuming failure of the Paris Agreement framework. It was not required to do so.

75.   Submissions were of the view that the Project should not be primarily justified because “it can potentially create economic benefit”. Submissions had conflicting views with the Applicant’s economic assessment and cost benefit analysis noting that it cannot be considered in isolation to the wider effects on the community and environment, notably the impacts associated with GHG emissions.

148. The IPC, when dealing with the key issue of GHG emissions observed at paragraph 171 of the Statement of Reasons:

171.   The Commission notes that a number of submissions were received objecting to the proposal on the basis of GHG emissions and the cumulative impact the mine would have on climate change. The Commission acknowledges that submissions expressed that approval of the mine would be inconsistent with NSW Government emission reduction targets for 2030 and 2050.

149. In its ultimate conclusion at paragraph 275 it stated:

275.   The views of the community were expressed through public submissions and comments received (as part of exhibition and as part of the Commission’s determination process), as well as in oral presentations to the Commission at the Public Hearing. The Commission carefully considered all of these views as part of making its decision.

150. When regard is had to the totality of the Statement of Reasons the overwhelming inference to be drawn is that the substance of the Interim Findings was before the IPC and relevantly considered by it as part of its evaluation pursuant to the power conferred. To the extent that it is suggested that the harm to the climate was not “engaged” with such an inference is not available, as the harm as identified in the submissions was referred to and formed part of the consideration of the IPC.

151. With respect to the contention that the approach to the assessment of harm identified by the IPC resulted in the unreasonable approach of asking itself the wrong question with respect to the Scope 3 Emissions the Applicant’s submission relies upon an inference being drawn that rather than assessing the impact upon climate the IPC merely asked itself who was best placed to regulate and account for Scope 3 Emissions under international carbon accounting. That inference is said to be drawn from the Statement of Reasons at paragraph 170 where the IPC stated:

170.   The Commission acknowledges that while the Project’s Scope 3 emissions would contribute to anthropogenic climate change, they are more appropriately regulated and accounted for through broader national policies and international agreement (such as the Paris Agreement). The Commission notes that the GHG emissions associated with burning coal to produce energy are accounted for at the international powerplants where that combustion takes place. The Commission agrees with the Department that the fundamental principle of accounting is to avoid double counting and it must be noted that one entity’s Scope 3 emissions are another entity’s Scope 1 emissions. However, the Commission has considered all emissions associated with the Project (including Scope 3 emissions) in its assessment and determination.

152. Whilst the IPC did make a statement relating to its opinion as to the relevant “accounting” of Scope 3 Emissions as part of State and national policies it also stated that such was not the sole consideration of the Scope 3 Emissions as identified in the last sentence of that paragraph. It is apparent that the IPC did engage with the scope and potential impact of the Scope 3 Emissions in a manner consistent with the exercise of power to determine the Extension Project as required by s 4.38 of the EP&A Act, in that the IPC:

1. Identified the quantum of the Scope 3 Emissions at paragraph 151 of the Statement of Reasons;

2. Acknowledged the requirement to consider Scope 1, Scope 2 and Scope 3 Emissions in accordance with the requirements of cl 2.20 of the Resources SEPP at paragraph 20 of the Statement of Reasons. It further identified the relevant polices for consideration and the implication of such policies on the determination of the Extension Project. The IPC noted in the table at page 8 of the Statement of Reasons that:

Although not of determinative weight in and of itself, the Commission – which has no policy formulation role – accepts that NSW Government policy (including the 2020 Strategic Statement on Coal Exploration and Mining in NSW) expressly supports responsible coal production – including the ‘government’s efforts to keep NSW open for business for coal production’.

3. Acknowledged that the issue of GHG emissions and climate change were matters relevant for consideration independent of the requirements of the Resources SEPP and arose for consideration in respect to: the likely impacts of the Extension Project; the consistency with the Objects of the EP&A Act, including the principles of ESD; and the public interest identified in summary in the table at pages 7-8 of the Statement of Reasons;

4. Identified that the public submissions made to the IPC included submissions relating to GHG emissions and Scope 3 Emissions. Such submissions included (as identified above) the quantification of harm caused by climate change and the capacity for Government policies to ameliorate the harm identified and the capacity of the NSW and Commonwealth government to in fact achieve the GHG reduction targets identified in such policies if the Extension Project was approved: at paragraphs 50, 72, 75 and 171 of the Statement of Reasons by way of example;

5. The IPC at observed at paragraph 170 of the Statement of Reasons with respect to Scope 3 Emissions that:

170.   The Commission acknowledges that while the Project’s Scope 3 emissions would contribute to anthropogenic climate change, they are more appropriately regulated and accounted for through broader national policies and international agreement (such as the Paris Agreement). The Commission notes that the GHG emissions associated with burning coal to produce energy are accounted for at the international powerplants where that combustion takes place. The Commission agrees with the Department that the fundamental principle of accounting is to avoid double counting and it must be noted that one entity’s Scope 3 emissions are another entity’s Scope 1 emissions. However, the Commission has considered all emissions associated with the Project (including Scope 3 emissions) in its assessment and determination.

6. It further found, having regard to the totality of GHG emissions at paragraph 183 of the Statement of Reasons:

183.   For the reasons set out above, the Commission finds that the GHG emissions for the Project have been adequately assessed. Subject to the imposed conditions, the Commission is satisfied that the Project can achieve the requirements of the Resources SEPP and the relevant strategic policy positions with respect to the reduction of fugitive emissions and the recognition of the importance of the continuation of the extraction and exportation of coal to the NSW economy. The Commission recognises that at this stage there is an ongoing demand for coal and that in line with the NSW Strategic Statement, the Project would not be located in any of these ‘no-go’ areas, but would be located in an area where coal exploration and mining titles already exist. The Commission acknowledges the Project’s positive economic contribution to the local area through the provision of jobs, indigenous employment, and flow on economic benefits to local business (paragraph 234 below). The Commission also acknowledges that mining plays an important part of the NSW in the Net Zero Plan and that mining needs to be undertaken sensitively to minimise impacts on the environment.

153. Each of the steps identified in the paragraph above were required and authorised by the provisions of s 4.38 of the EP&A Act and required by s 4.15. In this regard the Applicant’s argument is one that relies upon a finding that the Decision made by the IPC was simply not legally open to a decision-maker in that statutory context to determine to approve a coal mine in the face of its own finding that the Scope 3 Emissions would contribute to anthropogenic climate change. In the present state of the legislative constraints imposed by the EP&A Act (as observed above) the decision-maker is conferred a broad discretion to weigh and determine an application to carry out development.

154. The assessment of the impacts of the Scope 3 Emissions from the Extension Project on the climate was undertaken in a statutory context. Part of that Statutory context was the requirement imposed by the Resources SEPP that consideration be given to the assessment of GHG emissions having regard to any applicable State or national policies, programs or guidelines concerning GHG emissions. It is apparent from the Statement of Reasons that the IPC considered a range of State and national policies. The Applicant did not identify that the IPC had not properly identified a relevant policy or that it misidentified the effect of any such policy considered by it in its assessment of the Extension Project. In that context, it is apparent that in the IPC determined the assessment of the impact of GHG emissions by identifying the estimated GHG emissions of the Extension Project, including Scope 3 Emissions, identified the harm by accepting the consequence of such emissions (as identified in paragraph 169 of the Statement of Reasons) being that the mining and combustion of coal is a major contributor to anthropogenic climate change which had the potential to impact future generations and thereafter, considered those factors in the statutory context required of it. As identified by the IPC at paragraph 183 of the Statement of Reasons that, upon its assessment approval of the Extension Project, would achieve the requirements of the relevantly identified policy statements. In light of the substance of those State and national policies as identified by the IPC in its Statement of Reasons absent a finding that the IPC misidentified the effect of the policies identified a decision within the range of outcomes anticipated within such a policy setting cannot, absent more, be identified as unreasonable.

155. The Decision made by the IPC in this case was one that had a rational foundation and an evident or intelligible justification as identified by the IPC by reference to the identified State and national policies. Where such policies did not dictate an outcome, it was for the IPC to determine the weight to be given to the relevant considerations in the assessment undertaken by it. From its Statement of Reasons the IPC has identified a process of assessment within the parameters identified in the statutory context and the application of those considerations to the facts of the case available to the IPC are not disclosed as being a decision that is plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.

156. For the reasons outlined above, I find that the Decision was not legally unreasonable on the basis of a failure to make the Interim Findings in the manner contended by the Applicant.

Public interest ground

157. By way of summary the IPC found with respect to the public interest ground (including ESD in the Statement of Reasons at page 8):

The Commission has given consideration to the principles of ESD in its assessment of each of the key issues, as set out in section 5. The Commission finds that, on balance, the Application is not inconsistent with ESD principles, and that the Project would achieve an appropriate balance between relevant environmental, economic and social considerations. The likely benefits of the Project warrant the conclusions that an appropriately conditioned approval is in the public interest.

158. To the extent that the public interest ground relied upon the failure to make the Interim Findings, for the reasons outlined above, as it relates to this ground must also fail.

159. The Applicant also contends that the finding of the IPC that the Decision was in the public interest was legally unreasonable (independent of the failure to make the Interim Findings Ground) on the basis that:

1. No reasonable decision-maker, faced with the cogent and unchallenged evidence before the IPC, could have reached the conclusion that this Extension Project was in the public interest. The only reasonable conclusion was that the Extension Project would exacerbate climate change and increase the risk of crossing tipping points in the climate system, which would entail “unthinkable and incalculable” social costs;

2. The IPC relied on conditions placed on the Extension Project as a safeguard against environmental harm. The importance of the conditions was confirmed in the IPC’s conclusion that “without compliance with the conditions imposed by the Commission “… the predicted negative impacts of the Application would warrant refusal of the Application”: Statement of Reasons at page 8, Table 1; and

3. The only reasonable conclusion was that the Extension Project was inconsistent with the principles of ESD contrary to what was found by the IPC in the Statement of Reasons at page 9, Table 1.

160. Again, as the basis for the challenge is one of legal unreasonableness, the Applicant must establish that the findings made by the IPC as to the public interest were unreasonable in the sense that in making the Decision the IPC exceeded the scope of its power.

161. For the reasons that follow, I find that the IPC’s finding that the approval of the Extension Project was not legally unreasonable.

162. The first basis, being that in the face of the substance of the Interim Findings (which I have found, by way of inference, were taken into account by the IPC) the only available decision was that the Extension Project was not in the public interest. In this respect the Applicant contends that, in effect, in light of the potential climate change impacts, there was no finding other than a finding that the Extension Project was not in the public interest that was open to the IPC acting legally reasonably.

163. By operation of s 4.15(1)(e) of the EP&A Act the public interest is identified as one of the mandatory considerations to be taken into account in the evaluation of the Extension Project. What comprises the public interest is not expressly stated in s 4.15. In Minister for Planning v Walker (2008) 161 LGERA 423 it was held at [39] and [41] that:

39   In my opinion, it is a condition of validity that the Minister consider the public interest. Although that requirement is not explicitly stated in the EPA Act, it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act that, in my opinion, it goes without saying. Any attempt to exercise powers in which a Minister did not have regard to the public interest could not, in my opinion, be a bona fide attempt to exercise his or her powers, and so would not even pass the Hickman test.

41   However, this requirement, so stated, operates at a very high level of generality, and does not of itself require that regard be had to any particular aspect of the public interest: cf Walsh v Parramatta City Council [2007] NSWLEC 255 at [60] (quoted above in the extract from Notaras). One would generally presume that a Minister making a decision does have regard to the public interest, and one would look for substantial evidence to make out a case that the Minister had not had regard to the public interest.

164. The “high level of generality” of the public interest highlights the discretionary evaluative nature of the power being exercised and the consideration of factors required by s 4.15 of the EP&A Act. In effect, it is a matter for the decision-maker to determine what factors warrant consideration within the broad compass of the public interest.

165. In this case, it is apparent from the Statement of Reasons that the IPC considered the public interest to include matters relating to ESD and that such consideration of the principles of ESD included a consideration of the impacts of the Extension Project on climate change. However, as is apparent from the summary at [30] above, the IPC also considered that the public interest included matters relating to environmental, economic and social considerations, which included a consideration of ESD in the context of a consideration of each of the key issued identified in section 5 of its Statement of Reasons.

166. Where ESD or climate change is not the only consideration undertaken in determining whether the Extension Project is in the public interest and the other components of the consideration are within power (which was not contended in this case), what is left is the balance of those factors by the consent authority. Questions of the weight attributed to a multi-faceted decision is largely left to the decision-maker’s “area of decisional freedom” as conferred by the provisions of the EP&A Act. To do otherwise is to attempt to undertake the task as identified at [118] above as being beyond the scope of judicial review, namely to “…assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error” or to put it another way to undertake a merit review.

167. The Applicant contended that it was not seeking to review the merits of the finding that the Extension Project was in the public interest, but rather, consistent with the authority in Payne the facts of this case warranted a finding of legal unreasonableness as on the facts and circumstances of this case such a findings was: a disproportionate exercise of power; a failure to give adequate weight to a factor; and included legally unreasonable assessments of the evidence before it such that the finding of public interest was legally unreasonable and jurisdictional error. Error, of a jurisdictional character, is disclosed because the decision-maker has engaged in conduct which the statute properly construed does not permit.

168. The facts in Payne related to an administrative decision made by a Chief Magistrate to assign a newly appointed Magistrate to a regional location with immediate effect in circumstances where that Magistrate had family commitments that made relocation on short notice extremely difficult. The question before the Court did not relate to whether the Chief Magistrate could assign the Magistrate to the regional location but rather the time in which that reassignment should be effected, accepting that the powers of the Chief Magistrate involved a wide discretionary power. The Court found at [24] that:

24   But in this particular case, the material does not suggest any other particular, cogent reason why, in light of the family considerations to which I have referred, at least some months must not have been allowed to Ms Payne before her being required to move. I say “must" because this process was not in this court in the end a question of weighing considerations, and therefore should not be characterised as having involved a review “on the merits" — such as this court may not conduct under this legislation. None of the other relevant considerations being of predominant significance, this extremely weighty consideration did, as I have said elsewhere, “overwhelm" the others and, on any reasonable view, compelled the conclusion that Ms Payne must before moving have been allowed a period substantially in excess of a month to rearrange affairs with relation to the interests of her five young children. And that does not detract from the promotion of the overall objective of the orderly management of the court. That objective would ordinarily be thwarted by the natural preoccupation of a magistrate in these circumstances, while supposedly advancing the interests of justice through dealing with matters in court, with being necessarily burdened at the same time by the critically important need to fix up unresolved arrangements relating to the settling in of her children to a new environment following a hasty extraction from their old one.

169. From this finding it can be ascertained that the Court considered that the circumstances of the facts of that case demonstrated that there were limited matters involved in the consideration of the exercise of the discretion and on its face none of those matters were identified in the decision-making process as being of such predominant consideration such that they would operate to overcome the significant disadvantage to the Magistrate and her family. The Court did not itself weigh the considerations but rather considered the factors in the context of the actual decision and came to a finding that compelled a decision that the Chief Magistrate’s decision was legally unreasonable as it related to the timing of the assignment.

170. The approach in Payne is consistent with other authorities that deal with matters of procedure such as ABT17 at [20], [25] and [31]; and Singh at [44]-[45] and [47]. These authorities emphasise that they are not undertaking for themselves a merit review but rather following the reasoning process identified by the decision-maker and determining whether on the facts of that case the finding diverged from one within the power conferred. That is not this case. In the consideration of the Extension Project the evaluation exercise that included a consideration of the public interest was broad and multi-faceted. The IPC had determined the factors that it considered comprised the public interest, which considerations were themselves complex and multi-faceted. The Statement of Reasons makes it apparent that the consideration of the factors were considered and supported by the material that was before the IPC. As is evidenced by the Statement of Reasons the question of whether an approval of the Extension Project was in the public interest did not of itself present as a single answer that overwhelmed all other identified considerations – it was open to a number of outcomes. The IPC itself identified that the question was one that was finely balanced in its statement at page 8 of the Statement of Reasons that:

Without compliance with the conditions imposed by the Commission, the Commission considers that the predicted negative impacts of the Application would warrant refusal of the Application. Similarly, if the Application were for a materially similar Project in a greenfield location without an existing mine, it is possible that the Commission’s weighing of the relevant impacts would warrant refusal of such an application.

Nonetheless, the present Application, subject – in particular – to unprecedented conditions requiring ongoing management and limitation of Scope 1 greenhouse gas (GHG) Emissions, represents a responsible application for continued coal production and an orderly extension of the existing Narrabri mine. The grant of consent to the Application facilitates and preserves economic and other benefits to the State and the region.

171. To find that the only available finding within the scope of the discretion was that, in light of the impacts of the Extension Project on climate change, the only legally reasonable finding was that the approval was not in the public interest is to require as a matter of law that the climate change evidence be given weight of a kind or nature that would overwhelm any other legally available consideration. In the context of the EP&A Act and the power conferred by s 4.38 such a dictate is not available. It was for the IPC to determine what factors it was required to weigh (which identification is not challenged) and thereafter, to weigh those factors – on the available evidence it did so and therefore, acted within the power conferred upon it such that its finding on this basis is legally reasonable. From the Statement of Reasons there is an intelligible and rational justification identified in the decision-making and apart from the Applicant urging the outcome of the Decision as requiring refusal in order to act rationally and justly, no apparent irrationality or injustice is disclosed in the Statement of Reasons.

172. The Applicant also contended that the IPC’s reliance upon the operation of the conditions to render the approval of the Extension Project within the public interest was legally unreasonable. The Applicant contended that the conditions were not capable of operating in a manner to limit Scope 1 or Scope 2 Emissions and had no impact on Scope 3 Emissions. The conditions in question focussed on conditions B16-B20 the text of which are attached at Annexure A.

173. The Applicant’s submissions that it was legally unreasonable for the IPC to consider the impact of these conditions on GHG emissions was legally unreasonable cannot be accepted.

174. First, the IPC did not contend that the conditions would reduce or otherwise ameliorate the impact of Scope 3 Emissions and therefore, the fact that they do not address those emissions in the context of the consideration of the public interest cannot be said to be unreasonable as it was not intended that those emissions be addressed by condition. As to the terms of the conditions allowing for consideration of Scope 1 and Scope 2 Emissions to be offsets against exceedances (even if this is the actual effect of the condition) does not render the IPC’s reliance on the condition to be unreasonable. The IPC was aware of the terms of the conditions, their effect and their limitations. Notwithstanding, the IPC considered that those conditions were of a type that would effect some change on the Scope 1 and Scope 2 Emissions in a positive manner. Such a finding was open to the IPC on the basis of the conditions as formulated and the weight that the operation of such conditions in the assessment of the public interest was (for the reasons outlined above), a matter for the IPC.

175. The Applicant’s contention that the only reasonable conclusion was that the Extension Project was inconsistent with the principles of ESD contrary to what was found by the IPC must also be rejected. Again, inherent in this contention is the suggestion that the only consideration in ESD is climate impacts and that is not a construction available on the legislative provisions. The principles of ESD as a consideration derive from the provisions of the objects of the EP&A Act namely, s 1.3(b) which states:

to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment…

176. ESD is defined in s 4 of the EP&A Act by reference to the definition in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW) which defined that term as:

For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs—

(a)   the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by—

(i)   careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii)   an assessment of the risk-weighted consequences of various options,

(b)   inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

(c)   conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

(d)   improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as—

(i)   polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,

(ii)   the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,

(iii)   environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

177. Such a provision requires an evaluation of a number of sometimes competing considerations such as the: the effective integration of social, economic and environmental considerations in decision-making. This evaluative consideration in its statutory context directs the manner of the undertaking of the exercise of the discretionary power, it does not dictate its outcome. In this case, it is not contended that ESD was not considered or that the consideration by the IPC took into account matters irrelevant to the application of the principles of ESD rather it rejects the outcome of that evaluation. For the same reasons as were identified at [171], in light of the nature and scope of the power conferred the outcome of the evaluative process is a matter for the decision-maker and it is not open for the Court in proceedings for judicial review to determine for itself the merit of that evaluative outcome. In the circumstances of the power being exercised and the manner it was exercised by the IPC the outcome of the evaluation having regard to the principles of ESD was not legally unreasonable.

178. For the reasons outlined above, the Applicant has failed to establish the public interest ground.

Findings on ultimate decision ground

179. The remaining issue in the Applicant’s case is the Decision was legally unreasonable. In its written submissions the Applicant submitted at paragraph 46:

The IPC is an active part of the anthroposphere. In 2022, every decision it makes on coal mining developments determines the relative speed, severity and irreversibility of the unfolding crisis. The evidence before the Court is (and will be) such that it is open to the Court to find that the decision to approve any significant coal mining development is now legally unreasonable, at least where the evidence is as it was before this decision-maker. However, it is not necessary for the Court to go so far in order to resolve the present case. It is sufficient to conclude that both the process and the outcome in respect of the Decision in issue here were legally unreasonable, and the Decision should be set aside.

180. With respect to this ground the Applicant’s fundamental argument was that it was legally unreasonable for the IPC to make the Decision in light of the evidence of harm caused by climate change and the acceptance by the IPC that the Scope 3 Emissions which would be produced by the burning of the coal extracted as a consequence of the Extension Project would contribute to anthropogenic climate change. Again, as this ground relies upon an assertion that the Decision was legally unreasonable it requires a determination is one that was open within the legal bounds of the decision-making power.

181. For the reasons that follow, I find that the Decision was one that was within the bounds of the IPC’s decision-making power.

182. In this case, in light of the State and national policies which were mandatory relevant considerations, the Applicant’s submission that: [t]he evidence before the Court was such that it is open to the Court to find that the decision to approve any significant coal mining development is now legally unreasonable, at least where the evidence is as it was before the IPC cannot be sustained. As identified in the Statement of Reasons, the policies considered by the IPC did not dictate an outcome of refusal if the coal mine would contribute to GHG emissions or even climate change. Rather an assessment and weighing of impact and benefit was required. The IPC in the Statement of Reasons sets out its process of that weighing of considerations. Whilst it was observed by the Applicant that another conclusion could or should have been reached, such is a complaint about the outcome of the exercise of the discretion rather than the lawfulness of the assessment that arrived at that conclusion.

183. In circumstances where the power being exercised requires as a mandatory relevant consideration a consideration of such policies as part of a discretionary power that requires the synthesis of multi-faceted and sometimes competing considerations to arrive at an ultimate determination, a decision that is consistent with such policies cannot be legally unreasonable – as the power itself by requiring those polices to be considered anticipated that at least one of the potential outcomes of the lawful exercise of that power could be to approve the extraction of coal which would ultimately (upon consumption) contribute to anthropogenic climate change.

184. The Applicant’s challenge on this ground is ultimately one that relates to the weight given to the respective relevant consideration of the impacts of climate change and in particular as it relates to the Scope 3 Emissions. In the circumstances of the nature and scope of the power as identified above, and in light of the IPC’s Statement of Reasons, the Decision does not demonstrate that the weight given in the balancing exercise required by s 4.15 of the EP&A Act was on its face disproportionate such that it could warrant a finding of legal unreasonableness. Rather, to engage with the finding in the manner contended by the Applicant would be to engage in a substitution of the Court’s determination of the merits of the Application – such is not open in proceedings such as these.

IPC’s ground

185. The IPC raised a ground relating to the powers of the Court to make the declarations sought by the Applicant. For the reasons outlined above, I find that the Applicant has not succeeded on any of its grounds and therefore, the question raised by the IPC does not require determination.

Costs

186. The parties have not addressed me as to whether it is appropriate in the circumstances of this case to make a costs order on the usual basis. Accordingly, I will reserve costs and make directions as to any application for costs.

Conclusions and orders

187. For the reasons outlined herein, the Applicant has not been successful in its claim. Accordingly, I order:

1. The Applicant’s Amended Summons dated 12 August 2022 is dismissed; and

2. Costs of the proceedings are reserved.

188. I direct that:

1. The matter be listed for mention before me at 9:15am on Wednesday, 19 July 2023 to make directions for the hearing of the question of costs or, if the question of costs is resolved by agreement, the making of orders by consent; and

2. The exhibits will be returned upon final determination of any question of costs.

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Annexure A

Decision last updated: 05 July 2023