Denman Aberdeen Muswellbrook Scone Healthy Environment Group Incorporated (INC2200560) v MACH Energy Australia Pty Ltd

Case •

[2024] NSWLEC 86

•

19 August 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Denman Aberdeen Muswellbrook Scone Healthy Environment Group Incorporated (INC2200560) v MACH Energy Australia Pty Ltd and Anor [2024] NSWLEC 86
Hearing dates: 7 to 10 November 2023
Date of orders: 9 September 2024
Decision date: 19 August 2024
Jurisdiction:Class 4
Before: Robson J
Decision:

See orders at [253] and [254]

Catchwords:

JUDICIAL REVIEW — Challenge to the grant of a development consent by the Independent Planning Commission (‘Commission’) for an extension of an existing coal mine — Whether failure to consider mandatory considerations — Whether failure to consider specific conditions aimed at minimising to the greatest extent possible greenhouse gas emissions — Whether failure to consider cl 2.20(1) of the State Environmental Planning Policy (Resources and Energy) 2021 — Whether failure to assess downstream (Scope 3) emissions — Whether failure to consider likely impacts of downstream (Scope 3) emissions — Whether engaged in irrational or illogical form of reasoning when proceeding on the basis that “accounting” of Scope 3 emissions will be undertaken by the downstream consumer country — Whether failure to consider likely impacts of Scope 3 emissions in its assessment of public interest — Whether engaged in illogical or irrational form of reasoning when stating that, without the conditions that have been imposed on the development consent, the development proposal would warrant refusal — Whether conditions imposed were merely hypothetical — Whether failure to consider submissions in relation to climate change impacts — Whether misconstruction of s 4.63(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) when determining what would have been carried out but for the surrender of the existing consent — Whether deferred or delegated consideration of impact of proposed development on newly discovered species of lizard — Whether failure to adhere to standard of reasonableness when assessing air quality impact and social impact — Amended summons dismissed

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979 (NSW), Pt 4, Div 4.7, ss 2.9, 4,15, 4.17, 4.36, 4.38, 4.40, 4.50, 4.63, Sch 1, Pt 1, cl 20

Land and Environment Court Rules 2007 (NSW), r 4.2

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, cl 14

State Environmental Planning Policy (Resources and Energy) 2021, cl 2.20

Cases Cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Barrington - Gloucester - Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197; (2012) 194 LGERA 113

Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263

Bushfire Survivors for Climate Action Incorporated v Narrabri Coal Operations Pty Ltd [2023] NSWLEC 69

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215

DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12

Foster v Minister for Customs and Justice (2000) 200 CLR 442; [2000] HCA 38

Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7; (2019) 234 LGERA 257

Kepco Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423

Minister for the Environment v Sharma (2022) 291 FCR 311; [2022] FCAFC 35

Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110; (2021) 252 LGERA 221

Parramatta City Council v Hale (1982) 47 LGRA 319

Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1521; (2008) 162 LGERA 154

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359

South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd [2011] NSWLEC 250; (2011) 211 LGERA 1

The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36

Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Category:Principal judgment
Parties: Denman Aberdeen Muswellbrook Scone Healthy Environment Group Incorporated (INC2200560) (Applicant)
MACH Energy Australia Pty Ltd (First Respondent)
Independent Planning Commission of NSW (Second Respondent)
Representation:

Counsel:
N L Sharp SC with L Sims and M Thompson (Applicant)
S J Free SC with D Hume (First Respondent)
Submitting appearance (Second Respondent)

Solicitors:
Environmental Defenders Office Ltd (Applicant)
Ashurst Australia (First Respondent)
NSW Department of Planning and Environment (Second Respondent)
File Number(s): 2022/00367759
Publication restriction: Nil

Judgment

Introduction and outcome

  1. The Denman Aberdeen Muswellbrook Scone Healthy Environment Group Incorporated (‘DAMSHEG’) has brought Class 4 judicial review proceedings challenging the determination of the Independent Planning Commission of NSW (‘Commission’) on 6 September 2022 (‘decision’) to grant development consent to the Mount Pleasant Optimisation Project (‘Project’). The Project involves the extension of the life of the Mount Pleasant Coal Mine (‘mine’) which is an established open cut coal mine operated by MACH Energy Australia Pty Ltd (‘MACH’) under an existing development consent within the Upper Hunter Valley, approximately 3km north-west of Muswellbrook. The decision was made pursuant to s 4.38(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).

  2. The Commission, as consent authority, filed a submitting appearance and MACH was the active respondent.

  3. DAMSHEG seeks a declaration that the Commission’s decision to grant development consent is invalid and advances eight (somewhat overlapping) grounds. As will be seen, Grounds 1 to 5 essentially concern the Commission's treatment of greenhouse gas emissions, in particular, Scope 3 emissions, and raise errors of statutory construction, failure to consider mandatory considerations, and irrational or illogical forms of reasoning. Grounds 6, 7 and 8 concern the Commission’s treatment of biodiversity, air quality, health and social impacts.

  4. Although these proceedings raise matters of the utmost public interest, and while there is no doubt that the continuation of coal mining will contribute to the global total of greenhouse gas concentrations which affects the climate system and causes climate change impacts, the jurisdiction of this Court in these judicial review proceedings is confined to ensuring that the Commission carried out its functions in accordance with the statutory provisions that govern the performance of those functions and exercise of the relevant powers. It is not the function of this Court to undertake merits review of the Commission’s findings. This is a fundamental principle that will be reiterated throughout this judgment.

  5. For the reasons that follow, I find that DAMSHEG has not established any of the grounds of review of the Commission’s decision to grant development consent to the Project and the amended summons filed 30 October 2023 should be dismissed.

Background

  1. The following background facts are uncontentious. Further facts will be noted in my consideration of the evidence and the parties’ submissions.

  2. Development consent was originally granted for the construction and operation of an open cut coal mine at Mount Pleasant on 22 December 1999 and has been the subject of five modifications, with the most recent modification granted on 29 June 2022 (‘existing consent’). MACH purchased the coal mine in 2016 and commenced mining operations in 2018.

  3. The existing consent (as modified) authorises the extraction of up to 10.5 million tonnes per annum (‘Mtpa’) of run-of-mine (‘ROM’) coal until 22 December 2026 and provides for the development and operation of a range of ancillary infrastructure including a coal handling and preparation plant, a rail loop and spur, and a conveyor and load-out facility to transport coal by rail to the Port of Newcastle.

  4. On 19 January 2021, MACH lodged a State significant development (‘SSD’) application (‘SSD 10418’) seeking to extend the life of the mine by 22 years to 22 December 2048. The extension of the operations of the existing mine would enable the extraction of an additional 406 Mt of ROM coal (allowing for a total of approximately 444 Mt of ROM coal over the extended life of the mine) by deepening part of the open cut mining area and increasing the mine’s peak annual production rate from 10.5 Mtpa to 21 Mtpa of ROM coal.

  5. On 22 January 2021, MACH lodged an environmental impact statement (‘EIS’) with the Department of Planning and Environment (‘Department’). SSD 10418 and the EIS were publicly exhibited between 3 February 2021 and 17 March 2021.

  6. On 9 September 2021, the Minister for Planning and Public Spaces made a request under s 2.9(1)(d) of the EPA Act for the Commission to conduct a public hearing into the Project. On 31 May 2022, the Department submitted its Assessment Report (‘Department AR’) to the Commission. The Department AR concluded that, subject to the adoption of its recommended conditions, on balance, the benefits of the Project outweigh its impacts, and that the proposed development was “approvable”.

  7. On 1 June 2022, the Department finalised its whole-of-government assessment and referred SSD 10418 to the Commission for determination and a public hearing was held by the Commission on 7 and 8 July 2022. At the public hearing, the Commission heard from community members and various parties, and received extensive and detailed submissions (including approximately 1,000 written submissions and 49 oral presentations including submissions made by DAMSHEG’s legal representative and one of DAMSHEG’s experts, Prof Penny Sackett).

  8. In addition to providing expert reports from a number of researchers and scientists, including Prof Sackett, Nicki Hutley, Dr Hedda Askland, Dr Gabriel da Silva and Simon Nicholas, DAMSHEG later provided the Commission with further written submissions and a number of recent publications of national and international research bodies in relation to greenhouse gas emissions.

  9. From 23 to 30 August 2022, the Commission reopened public submissions in response to new material received by the Department regarding a newly differentiated (and potentially endangered) species of Delma vescolineata (‘Legless Lizard’) being recorded at the site of the mine. The Commission received a further 52 submissions in relation to the Legless Lizard.

  10. On 6 September 2022, the Commission determined SSD 10418 by granting development consent subject to conditions and published a “Statement of Reasons for Decision” (‘Reasons’).

  11. These reasons for judgment are structured as follows. First, I will outline the grounds of review raised by DAMSHEG. Then I will briefly note the statutory framework for the Commission’s decision and legal principles that I am to apply in relation to a number of the grounds. I will then summarise the salient background facts which are largely uncontentious, with emphasis upon the evidentiary material before the Commission, and provide some explication of the Reasons before considering each of the grounds. I will deal with further facts in my consideration of the parties’ submissions. While there is some obvious overlap between a number of DAMSHEG’s grounds, given the manner in which the parties have presented their arguments, it is necessary to deal with each ground seriatim, which involves some unavoidable repetition in my consideration.

Grounds of review

  1. In its amended summons filed 30 October 2023, DAMSHEG seeks declaratory and consequential relief and contends that the decision to grant development consent to the Project is invalid on eight grounds:

  1. In purporting to consider s 4.15(1)(a)(i) of the EPA Act, the Commission failed to consider whether the consent should be issued subject to conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable as required by cl 2.20(1) of the State Environmental Planning Policy (Resources and Energy) 2021 (‘Resources SEPP’); and, further, failed to assess downstream emissions, or Scope 3 emissions, of the Project having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions as required by cl 2.20(2) and thereby failed to have regard to mandatory considerations (‘Ground 1 – Resources SEPP Ground’).

  2. The Commission failed to consider the likely impacts of Scope 3 emissions, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, and by that omission misconstrued the expression “likely impacts of the development…” in s 4.15(1)(b) of the EPA Act by treating that expression as encompassing an “accounting” treatment of Scope 3 emissions instead of considering the direct and indirect impacts of the Project. The Commission thereby either failed to take account of the mandatory considerations stipulated in s 4.15(1)(b) of the EPA Act and/or engaged in an irrational and illogical form of reasoning by proceeding on the basis that the “accounting” of the Scope 3 emissions by the downstream consumer country obviated the need to consider the impacts of those emissions (‘Ground 2 – Likely Impacts Ground’).

  3. The Commission failed to consider the likely impacts of Scope 3 emissions in its assessment of the public interest as required by s 4.15(1)(e) of the EPA Act (thereby failing to take account of this relevant consideration), or alternatively, engaged in an irrational and illogical form of reasoning with regard to the public interest by proceeding on the basis that the “accounting” of Scope 3 emissions by the downstream consumer country obviated the need to consider the environmental, social and economic impacts of those emissions (‘Ground 3 – Public Interest Ground’).

  4. In assessing the public interest as required by s 4.15(1)(e) of the EPA Act, the Commission engaged in an irrational and illogical form of reasoning by first stating that in the absence of conditions being imposed, the predicted negative impacts of the Project would warrant refusal, and thereafter granting approval together with conditions in relation to Scope 1 and Scope 2 emissions that were merely a hypothetical means of reducing those emissions because those conditions imposed aspirational targets (or were based on hypothesised future technology) rather than binding obligations (‘Ground 4 – Conditions of Approval Ground’).

  5. The Commission failed to consider DAMSHEG’s submissions and specific accompanying expert reports in relation to the effect of the Scope 3 emissions of the Project and the global carbon budget, and thereby failed to consider a mandatory consideration specified in s 4.15(1)(d) (this ground was particularised by reference to the expert reports of Prof Sackett, Ms Hutley and Mr Nicholas) (‘Ground 5 – Public Submissions Ground’).

  6. The Commission erred in its construction and application of s 4.63(3)(a) of the EPA Act by failing to determine what development “could have been carried out but for the surrender of the [pre-existing development] consent” and consequently failed to consider the impacts of vegetation clearing on biodiversity within parts of the site where vegetation clearing could not have been carried out under the pre-existing development consent (‘Ground 6 – Surrender of Consent Ground’).

  7. The Commission constructively failed to exercise its statutory power under s 4.15(1)(b) of the EPA Act by deferring and delegating for later consideration the impacts of the proposed development on the Legless Lizard (‘Ground 7 – Lizard Ground’).

  8. The Commission failed to adhere to the standard of reasonableness when reaching its conclusions, first, that the air quality impacts of the Project could be adequately minimised, managed or compensated to achieve an acceptable level of environmental performance; and second, that the Project will have no significant social impacts (‘Ground 8 – Air Quality Ground’).

Statutory framework

  1. The Project is development of a class declared to be SSD under s 4.36 of the EPA Act and the decision was made under s 4.38(1) of the EPA Act which provides that the consent authority (here, the Commission, under s 4.5(a) of the EPA Act) is:

“… to determine a development application in respect of State significant development by—

(a)   granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or

(b)   refusing consent to the application.

…”

  1. Section 4.40 of the EPA Act provides that the evaluation of a development application for SSD is set out in s 4.15 of the EPA Act and, as such, a consent authority, is required to take into consideration the matters in s 4.15(1) as are of relevance to the proposed development.

  2. For present purposes, the matters of relevance to the Project include the provisions of any environmental planning instrument (‘EPI’) (s 4.15(1)(a)(i)), such as the Resources SEPP (in particular cl 2.20); the likely impacts of the Project, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality (s 4.15(1)(b)); any submissions made in accordance with the EPA Act or the regulations (s 4.15(1)(d)); and the public interest (s 4.15(1)(e)).

  3. Part of DAMSHEG’s challenge (in relation to Ground 1 – Resources SEPP Ground) relates to the Commission’s failure to consider matters it was required to consider under cl 2.20 of the Resources SEPP, which relevantly provides:

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—

…

(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.

Some legal principles

  1. I remain conscious that the Court is engaged in judicial review and not merits review, and that the Court is primarily concerned with what the decision-maker, the Commission, did, in arriving at its decision. The role of the Court in judicial review is “to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision” (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (‘SZVFW’) at [79] (Nettle and Gordon JJ)) and the factual information before the decision-maker: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (‘Stretton’) at [7]-[13] (Allsop CJ). Noting that DAMSHEG raises concerns regarding the Commission’s failure to take into account mandatory considerations (including matters in cl 2.20 of the Resources SEPP, and in s 4.15(1)(a)(i), (b), (d) and (e) of the EPA Act) in Grounds 1, 2, 3, 5, 6 and 7, and legal unreasonableness in various guises (namely irrational and illogical forms of reasoning) in Grounds 2, 3, 4 and 8, it is appropriate to summarise some relevant legal principles about which there was no apparent disagreement between the parties. Some further elucidation of legal principles will be undertaken in the consideration of the grounds.

Mandatory considerations (Grounds 1, 2, 3, 5, 6 and 7)

  1. Whether a consideration is mandatory is a matter of statutory construction. A consideration may be a mandatory consideration by way of implication, taking into account the subject matter, scope and purpose of the relevant statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 115 (Mason J); [1986] HCA 40 (‘Peko-Wallsend’).

  2. The duty imposed by s 4.15(1) of the EPA Act is, in terms, a duty to take the identified matters “into consideration” as they are “of relevance to the development”. As the duty is a duty “to consider”, a challenge based on an alleged failure to consider “should not be turned into an assessment of the adequacy of the consideration accorded [by the decision-maker] in a particular case” and must not be framed in a way which “encourage[s] a slide into impermissible merit review”: Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [35] (Hodgson JA).

  3. In Foster v Minister for Customs and Justice (2000) 200 CLR 442; [2000] HCA 38 at [23], Gleeson CJ and McHugh J observed that when applying the principles regarding mandatory considerations it may be “significant” to consider the “level of particularity” with which a matter is said to be implicit in a statutory scheme. Moreover, a duty to consider a matter does not carry with it a duty to “refer to every piece of evidence and every contention made” in respect of that subject matter: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46] (French, Sackville and Hely JJ).

  4. The concept of consideration is not obscure and the duty to “consider” has been given an extensive history of judicial exegesis: Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215 (‘Ceerose’) at [54] (Payne JA). It is trite to note that caution has been suggested by the High Court in relation to the use of labels such as “active intellectual process” and/or “proper, genuine and realistic consideration” as there is a risk that the use of labels can readily shade into claims about arguments having been resolved incorrectly because such claims were misunderstood or not really grappled with, which tends towards merit review: Ceerose at [57].

  5. In my consideration to follow, I am conscious that it is for DAMSHEG to establish that the Commission had not engaged in a consideration of what was required to be considered. In making my findings, I accept that the Reasons are a comprehensive statement of the Commission’s approach and that the Commission was not required to recite all evidence and all submissions before it in its Reasons and that it is necessary to read the Reasons in the light of the whole case that was before the Commission. I am also conscious that although cl 20(2)(c) in Pt 1 of Sch 1 to the EPA Act requires the Commission to give public notification of its “reasons for decision”, the content or level of detail in its reasons is not prescribed.

Legal unreasonableness (Grounds 2, 3, 4 and 8)

  1. The power given by s 4.38 of the EPA Act is subject to the requirement of legal reasonableness and the statutory text, context and purpose of s 4.38 informs the reasonableness inquiry: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (‘Li’) at [23], [24], [63], [90] (French CJ, Hayne, Kiefel, Bell and Gageler JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [11] (Bell, Gageler, and Keane JJ). The question for the Court is not whether it thinks the decision is reasonable or appropriate but 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”: Stretton at [12].

  2. The standard of reasonableness is not confined to why a statutory decision is made but extends to how a decision is made, which can be assessed through examining the reasoning process by which the decision-maker arrived at the exercise of power: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [19] (Kiefel CJ, Bell, Gageler and Keane JJ) citing Li at [91]; Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 (‘Singh’) at [44]-[47] (Reeves, O’Callaghan and Thawley JJ).

  3. Where reasons for a decision are provided, as in the case here, they are the focal point for the assessment of legal unreasonableness: SZVFW at [84]; Singh at [47].

  4. Simply stated, the decision cannot be “so devoid of plausible justification that no reasonable person could have taken that course” (Li at [91]), and the decision should not lack rational foundation, be “plainly unjust, arbitrary, capricious or [lack] common sense having regard to the terms, scope and purpose of the statutory source of the power” such that it “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Stretton at [11]; SZVFW at [82].

  5. I remain conscious that legal unreasonableness also requires the Court to acknowledge that there is “an area of decisional freedom” vested in the decision-maker within which reasonable minds may differ in exercising statutory discretionary power: Li at [28]. In the present case, the decisional freedom afforded to the Commission under s 4.38 of the EPA Act is discretionary in nature and the matters identified in s 4.15 (which apply to decisions under ss 4.38 and 4.40) are not exhaustive, nor are they ordered or ranked, and it is for the Commission to determine the weight that each matter carries in the outcome of its decision: Bushfire Survivors for Climate Action Incorporated v Narrabri Coal Operations Pty Ltd [2023] NSWLEC 69 (‘Bushfire Survivors’) at [120], [121], [122], [124] (Duggan J).

The Commission’s consideration of the Project

  1. As Grounds 1 to 5 concern challenges to the Commission's consideration and treatment of greenhouse gas emissions, and Grounds 6, 7 and 8 relate to the Commission’s consideration and treatment of biodiversity, and moreover, that the Commission’s consideration of various matters miscarried, an understanding of the material before it, and the manner in which the Commission considered that material as expressed in its Reasons, provide context for consideration of the parties’ submissions.

  2. The Commission was obliged by cl 2.20(2)(c) in Pt 1 of Sch 1 to the EPA Act to give reasons for its decision. The Reasons are extensive, comprising 50 pages and 295 paragraphs presented in parts with, relevantly, Part 2 detailing the application, Part 3 detailing the Commission’s consideration, Part 4 detailing community participation and public submissions, Part 5 detailing key issues including air quality, greenhouse gas emissions, biodiversity and social impacts, and others; and Part 6 detailing the Commission’s findings and determination. The following precis, whilst lengthy, is not exhaustive and discrete aspects of the Reasons will be further noted in my consideration of the various grounds.

  3. At the outset of the Reasons, the Commission provides a description of the existing mining operations and lists the extensive material that it considered. The Commission then details the strategic and statutory context of the Project.

  4. Under the heading “Mandatory Considerations”, the Commission lists the matters it was required to consider pursuant to s 4.15(1) of the EPA Act (with commentary) in a tabular form under headings including the “Relevant EPI’s”; “Relevant development control plans”; Likely Impacts of the Development”; “Suitability of the Site for Development”; “Objects of the EP&A Act”; and “The Public Interest (including Ecologically Sustainable Development (ESD))”. Under the heading “Additional Considerations”, the Commission notes that it considered, relevantly, the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement 2015 (‘Paris Agreement’); Australia's Long-Term Emissions Reduction Plan (‘Emissions Reduction Plan’); the NSW Net Zero Plan Stage 1: 2020-2030 and its implementation plan (‘Net Zero Plan’); and the NSW Climate Change Policy Framework (‘CCPF’), along with several other policies, guidelines and plans.

  5. The Commission then records, under the heading “Community Participation and Public Submissions”, its conduct, including various meetings with interested parties and site inspections; the receipt of further information; the public hearing on 7 and 8 July 2022; and then briefly notes submissions received from Muswellbrook Shire Council and Upper Hunter Shire Council. The Commission then refers in detail to the Department AR.

  6. The Commission then provides an analysis of the public submissions received and records that the “Key Issues Raised” include “Greenhouse gas emissions and climate change”; “Air quality”; “Noise impacts”; “Socio-economic”; “Aboriginal and Historic Heritage”; and “Biodiversity and rehabilitation”; “Water”; “Visual”; and “Other”, and notes that the majority of the submissions received related to three topics – economy and socio-economic (67%); air quality and emissions (17%); and climate change (9%). The Commission then records the further material received in relation to the Legless Lizard.

  7. In Part 5 of its Reasons, under the heading “Air Quality”, the Commission notes (at par (110)), that the key air quality issues for the Project are associated with dust from general mining activities, fume from blasting activities and emissions from machinery exhausts. The Commission then lists the expert reports it considered in relation to air quality impacts including: Air Quality Impact Assessment dated 16 December 2020; Air Quality and GHG Peer Review dated 13 January 2021; Supplementary Air Quality Advice dated 1 July 2021; Response to Air Quality Peer Review dated 21 December 2021; and Supplementary Air Quality Peer Review dated 16 March 2022 (all prepared for MACH); Independent Peer Review dated 4 February 2022; and Independent Peer Review Final Response dated 31 March 2022 (prepared by/for the Department).

  8. The Commission then summarises its conclusions from the air quality assessment material including the finding (as provided for in the Department AR), that the impacts of the Project could be adequately minimised, managed or at least compensated to achieve an acceptable level of environmental performance and imposes various conditions setting air quality criteria, acquisition rights as well as proactive and reactive mitigation measures (at pars (121)-(124)).

  9. To provide context to the parties’ submissions (and the overlapping matters raised in Grounds 1 to 5 and 8 in relation to greenhouse gas emissions and air quality), it is convenient to provide the following (somewhat lengthy) extract from the Reasons under the headings “Air Quality” and “Greenhouse Gas Emissions”, to which there will be significant reference later in this judgment.

“Commission’s Findings

119.   The Commission notes the objections to the Project received on the basis of air quality impacts, particularly in the context of the ambient Upper Hunter air quality and with respect to the potential impact on equine health.

120.   The Commission is of the view that the potential air quality impacts of the Project have been adequately assessed and has imposed conditions requiring mitigation and management of these impacts. The Commission agrees with the Department and recognises that although the proposed impacts are similar to those of the Existing Approval, the impacts would be extended due to the Project's extended operation period - up to 22 December 2048.

121.   The Commission is satisfied that the Applicant has adequately addressed the EPA's requirements for dust-making operations through the proposed proactive and reactive measures, noting that this includes shut down requirements, to manage particulate emissions and impacts at the affected receptors. The Commission finds that the impacts of the Project can be adequately minimised, managed or at least compensated to achieve an acceptable level of environmental performance.

122.   The Commission has therefore imposed conditions B28 to B30 which set specific air quality criteria for the Project. The Commission has also imposed Condition B31 which sets out air quality and GHG operating conditions for the Project. Condition B31(c) requires the Applicant to implement both proactive and reactive air quality mitigation measures to ensure compliance with the relevant conditions of consent. The Commission notes that the applicable criteria may be exceeded at 13 receivers and one land parcel as a result of the Project and that these are afforded acquisition rights under the VLAMP. The Commission has therefore imposed conditions C1 and C12 to C19 which set out the land acquisition requirements for these receivers.

123.   The Commission agrees with the EPA's advice described above (paragraph 117) and has imposed Condition D11 which requires the Applicant to report on the effectiveness of air quality management systems including a review of the reactive management measures implemented at the Site. The Applicant must also describe what measures will be implemented over the next calendar year to improve the environmental performance of the development.

124.   Condition B32 imposed by the Commission requires the Applicant to prepare an Air Quality and Greenhouse Gas Management Plan (AQGGMP) in consultation with CAS (Climate and Atmospheric Science) and the EPA. The AQGGMP must set out measures to be implemented to ensure compliance with the air quality criteria. The AQGGMP must also include an air quality monitoring program, undertaken in accordance with the Approved Methods. The Applicant must implement the AQGGMP as approved by the Planning Secretary.

5.3   Greenhouse Gas Emissions

125.   GHG emissions are generally categorised into three different types and are described by the Clean Energy Regulator as follows:

•   Scope 1: emissions released to the atmosphere as a direct result of an activity, or series of activities, at a facility level;

•   Scope 2: emissions released to the atmosphere from the indirect consumption of an energy commodity. For example, emissions from the generation of purchased energy electricity, heat and steam used by a facility; and

•   Scope 3: indirect GHG emissions other than scope 2 emissions that are generated in the wider economy. They occur as a consequence of the activities of a facility, but from sources not owned or controlled by that facility's business.

International

126.   Australia is a signatory to the UNFCCC Paris Agreement, which requires signatories to identify actions to cut emissions, and under this agreement Australia has committed to reduce national GHG emissions by 2030. These actions are referred to as a Nationally Determined Contribution (NDC). The UNFCCC and related articles specify that all emissions associated with an activity within Australia's border count towards Australia's total emissions.

127.   The Commission notes that the Project's Scope 3 emissions will be accounted for in the consumer countries' GHG emissions. The Commission also notes that with the adoption of the Paris Agreement, almost all countries have committed to reduce their GHG emissions and track their progress in doing so.

National

128.   The National Greenhouse and Energy Reporting Scheme (NGERS) is a national framework for reporting on energy production, consumption and emissions by major emitters and State of origin and has been designed to support the Government's international reporting obligations. The Commission notes that NGERS does not require the reporting of Scope 3 emissions.

129.   The previous Commonwealth Government developed the Emissions Reduction Plan which is a whole-of-economy plan to achieve net zero GHG emissions by 2050. The Emissions Reduction Plan describes a "technology-led" plan that aims to "reduce the cost of low emissions technologies, accelerate their deployment at scale, and position our economy to take advantage of new and traditional markets". The Emissions Reduction Plan acknowledges that "Reducing emissions across these sectors [industry, mining and manufacturing] will require a range of new and bespoke technologies" and focuses on investing in technologies to help reduce and abate GHG emissions.

130.   The Commission notes that the current Commonwealth Government has committed to legislating a 43% reduction in GHG emissions by 2030.

State

131.   The Commission notes that the national and State policy settings relating to climate change and GHG emissions are rapidly changing. Section 3.2 of the Department's AR identifies that there is now a range of NSW climate change policy and guidance relevant to the regulation of GHG emissions, including:

•   a target of net zero emissions by 2050;

•   a reduction of approximately 50% emissions by 2030 (against a 2005 baseline); and

•   a focus on limiting fugitive emissions from coal mining (fugitive emissions of the methane contained in underground coal seams occurs when the coal is mined) (AR para 35).

132.   The CCPF aims to "Maximise the economic, social and environmental wellbeing of NSW in the context of a changing climate and current and emerging international and national policy settings and actions to address climate change". Under the CCPF, the NSW Government's objective is to achieve net-zero emissions by 2050 and for NSW to be more resilient to a changing climate.

133.   In January 2020, the NSW Government entered into the NSW Energy Package MOU with the Commonwealth Government which aimed at, in part, achieving emissions reductions. The NSW Energy Package MOU sets out an agreement that the Commonwealth will contribute funds to certain initiatives, including the Emissions Intensity Reduction Fund which is aimed at transitioning to low emissions solutions.

134.   In 2008 the NSW Government established the Coal Innovation Fund. "The Fund's purpose is to support research, development and the demonstration of low emissions coal technologies for future commercial application. It also aims to increase public awareness of the importance of low emissions coal technologies in reducing greenhouse gas emissions." (Regional NSW). [Footnote omitted.]

135.   In March 2020, the NSW Government released its Net Zero Plan Stage 1: 2020-2030, which was then updated in September 2021 with the Net Zero Plan. The Net Zero Plan identifies priorities and actions proposed in order to achieve a reduction in GHG levels by 2030.

136.   According to the EPA, fugitive emissions from coal and gas make up approximately 9% of NSW's GHG emissions as of 2018-2019. Under the Net Zero Plan, limiting the fugitive emissions that come from coal mining is important to reduce the State's emissions, including capturing and combusting those emissions. The Net Zero Plan states: "Emissions reductions from the resources sector could provide a new revenue stream for mines, increase productivity, improve mine safety and improve air quality". The Net Zero Plan also acknowledges that methane released during coal mining is a potential energy source equal to all residential gas use in NSW each year.

137. In the NSW policy context, clause 2.20(1) of the Resources SEPP expressly requires the consent authority to consider:

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-

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

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

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

138. Clause 2.20(2) of the Resources SEPP also requires the consent authority to consider:

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.

5.3.1   Project GHG Emissions

139.   The Department's AR states that fugitive emissions from mining in NSW are a significant component of GHG emissions and account for approximately 9-10% of NSW emissions (AR para 191).

140.   The Applicant's EIS was accompanied by a Greenhouse Gas Assessment (GHG Assessment), which included a Greenhouse Gas Calculations Report, dated 11 January 2021. An Air Quality and GHG Peer Review, dated 13 January 2021 was also submitted with the EIS. CAS Advice to the Department, dated 10 December 2021 (CAS Advice), stated that the emission estimates in the GHG Assessment were consistent with contemporary practice and emission factors. The CAS Advice stated that the GHG Assessment calculates fugitive emissions using a site-specific intensity factor based on Method 2 of the National Greenhouse and Energy Reporting Scheme (Measurement) Determination 2008, which according to CAS is the correct approach. However, in addition to the above, the CAS Advice set out points for improvement of the Applicant's GHG Assessment. The Applicant subsequently submitted a response to CAS, providing updated GHG calculations, dated 31 March 2022 (GHG Calculations).

141.   The Department's AR sets out the estimated Scope 1, 2 and 3 emissions for the Project as shown in Table 4 below:

Table 4 – Estimated GHG Emissions from the Project (Source: Department's AR)

GHG

Estimated GHG Emissions (Mt CO2−e)

Annual Average

Total

Scope 1

0.54

13.9

Scope 2

0.08

2.17

Scope 3

33.1

860

Total (excluding Scope 3)

0.62

16.07

Total (including Scope 3)

33.72

876.07

142.   With respect to Scope 3 emissions, the Department notes the assessment indicates that 98% of the total GHG emissions generated as a consequence of the project are those associated with the downstream burning of product (AR para. 194).

Scope 1 and 2 Emissions

143.   The anticipated further extraction of 406 Mt ROM coal is estimated to result in approximately 13.9 Mt carbon dioxide equivalent (CO2-e) total Scope 1 GHG emissions, with an average of 0.54 Mt CO2-e per year. The Commission understands the majority of these emissions are from diesel use, explosives, vegetation clearing and fugitive emissions. In relation to Scope 2 GHG emissions, the Project is estimated to result in approximately 2.17 Mt CO2-e total GHG emissions, with an average of 0.08 Mt CO2-e per year.

…

149.   The Commission notes that, as depicted in Figure 4 below, the majority of estimated Project fugitive emissions are predicted to occur in the last 10-12 years of the Project's life (AR para 205, GHG Calculations pg 9). The Department's AR states that annual fugitive emissions are predicted to peak at around 0.55 Mt CO2-e in the 2040s before reducing to lower levels by the ending of mining (AR para 205). The Applicant has committed to continue to "periodically evaluate technological advancements in fugitive emission abatement technology and would implement additional reasonable and feasible fugitive greenhouse gas mitigation measures that may become available over the life of the Project" and is agreeable to require such a review as part of the AQGGMP (GHG Calculations pg 9, Response to Commission dated 28 June 2022 pg 6). In relation to Scope 2 GHG emissions, the Applicant has also committed to investigating whether it is reasonable and feasible to reduce Scope 2 GHG emissions associated with on-site electricity use over the life of the Project.

…

Scope 3 Emissions

150.   The Commission 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 acknowledges that although the Project's Scope 3 emissions would contribute to anthropogenic climate change, these are appropriately regulated and accounted for through broader national policies and international agreements (such as the Paris Agreement).

151.   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 and acknowledges that under the Paris Agreement accounting rules and Australian legislation, Scope 3 emissions are not included in Project emission reporting, to avoid double counting. However, the Commission has considered all emissions associated with the Project (including Scope 3 emissions) in its assessment and determination.

5.3.2   Commission's Findings

152.   The Commission received submissions that raised concerns regarding the Project's GHG emissions and the impact the increase in mining would have on climate change and future generations. Some submissions recognised that while Scope 3 emissions are not counted towards NSW emissions, the cumulative impact of GHG emissions is still felt globally.

153.   The Commission recognises the concerns expressed in these submissions, however the Commission notes that under the Paris Agreement, Scope 3 emissions are attributed to the country within which they are emitted. The Commission notes that with the adoption of the Paris Agreement, almost all countries have committed to reduce global GHG emissions and to track their progress in doing so.

154. The Commission has considered the matters in clauses 2.20(1) and 2.20(2) of the Resources SEPP (in addition to the mandatory considerations under section 4.15 of the EP&A Act) and finds that the Project's Scope 1 and Scope 2 emissions have been estimated using the recommended methodologies consistent with the current national and NSW policy settings and commitments. In the absence of clear policy guidance on performance criteria or offsets, the Commission is of the view that the Project is not inconsistent with the CCPF, the Net Zero Plan or Australia's current obligations under the Paris Agreement in respect of Australia's current NDC's.

155. The Commission notes there is a growing body of international, national and State policy that is aimed at reducing GHG emissions (see paragraphs 126 - 138 above), particularly those associated with fugitive methane. The Commission is required to have regard to such applicable polices at the national and State level (under clause 2.20 of the Resource SEPP). The Commission also notes that current national and State policy recognises the ongoing demand for coal and its importance to the NSW (and Australian) economy and the regions it is located in. The current strategic direction of the NSW government, as set out in its policies, seeks to continue coal exploration, extraction and export. Instead of prescribing the refusal of development for projects such as the Project under consideration, the body of policy considered by the Commission (particularly the Commonwealth's Australia's Long-Term Emissions Reduction Plan and NSW's Net Zero Plan Stage 1: 2020-2030) indicates that the deployment of existing, emerging and future technologies to minimise and/or beneficially use fugitive methane is an important part of reducing GHG emissions from developments such as the Project.

156.   The Commission notes that the majority of the Project's estimated fugitive emissions are predicted to occur in the last 10-12 years of the Project life (see paragraph 149 above). A high percentage of the Scope 1 GHG emissions of the Project are associated with fugitive emissions of methane. The Commission considers that opportunities exist for the Applicant throughout the life of the Project to deploy existing, emerging and future technologies to improve the abatement of GHG emissions and to potentially derive a revenue stream through beneficial reuse of fugitive methane emissions.

157.   The Commission accepts the Applicant's estimated GHG emissions from the Project as described by the Department's AR (AR Table 8) and as set out in Table 4 above. The Commission has set specific GHG performance measures for Scope 1 and Scope 2 emissions for the Project. Condition B36 imposed by the Commission requires the Applicant to comply with the following Scope 1 GHG emissions for the life of the Project (or lower emissions as determined under the AQGGMP):

•   less than 0.87 million tonnes CO2-e emitted per calendar year;

•   less than 0.80 million tonnes CO2-e emitted per calendar year (5-year rolling average); and

•   less than 13.9 million tonnes CO2-e emitted over the life of the development.

158.   The Commission has imposed condition B32 which requires the Applicant to prepare an AQGGMP for the Project in consultation with the CAS and EPA to the satisfaction of the Planning Secretary. The Commission has also imposed condition B36 which gives effect to the requirements set out in paragraph 157 above. Within 12 months of approval of the AQGGMP and then every 3 years during the life of mining operations (and any period of suspension of ROM coal extraction and/or processing), the AQGGMP must be updated to include a review of abatement technologies and feasibility of implementing any new, improved or best practice abatement options. As a requirement of the AQGGMP, the Applicant must describe measures that have regard to the outcomes of these investigations. As part of the AQGGMP, the Applicant must set out measures aimed at achieving, as soon as reasonably feasible but by 2034 at the latest a Scope 1 GHG emissions intensity of 0.028 tonnes of CO2-e emitted from the development per tonne of ROM coal, based on a 5 year rolling average by calendar year (condition B34(d)(i) and (ii)). The Commission notes 0.028 tonnes of CO2-e per tonne of ROM coal is the predicted average emissions intensity for all Scope 1 emissions between 2023 and 2033.

159.   Alternatively, or in combination with the operation of condition B36 described above, the Applicant will always have the opportunity, over the entire life of the Project, to offset any GHG emissions over the prescribed limits in order to maintain compliance with the conditions. The Commission does not consider it reasonable or appropriate to require offsetting of all of the Project's GHG emissions - instead, the Applicant will retain the practical flexibility of choosing whether to:

a)   continuously implement and deploy appropriate technologies for the minimisation and/or beneficial reuse of fugitive methane and other emissions, being the outcome the conditions are intended to encourage; or

b)   offset exceedances of the emission reduction levels prescribed under condition B36.

160.   The Commission has also imposed condition B31 'Air Quality and Greenhouse Gas Operating Conditions' requiring the Applicant to take all reasonable steps to "(a)(iii) improve energy efficiency and minimise Scope 1 and Scope 2 GHGEs generated by the development". The Applicant will also be required to ensure that all new 'non-road' mobile diesel equipment used in undertaking the development includes reasonable and feasible emissions reduction technology as required by Condition B31(b). The Applicant must also minimise GHG emissions by using electricity generated by renewable or carbon neutral energy sources where reasonable and feasible as required by condition B36 imposed by the Commission.

161. 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, the EP&A Act and the relevant Commonwealth and NSW 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 and flow on economic benefits to local business (paragraph 247 below). The Commission also acknowledges that mining plays an important part of the NSW economy into the future as set out in the Net Zero Plan and that mining needs to be undertaken sensitively to minimise impacts on the environment.”

  1. The Commission then considers and made findings in relation to the “Key Issues Raised” (as mentioned at [38] above), before summarising its overall findings and determination in its Reasons (at pars (292)-(295)) (which, for convenience, are reproduced as annexure “A” to this judgment).

  2. In considering “Biodiversity”, the Commission notes (at pars (201)-(222)) that the Project would disturb up to 475ha of native vegetation, including approximately 161ha of woodland, and up to 314ha of derived native grassland, and that the Project “proposes to relinquish approval (under the Existing Approval) to disturb an area of 485 hectares … and as such, there is no significant net change to the overall disturbance area proposed”. The Commission then considers the Revised Biodiversity Development Assessment Report (‘BDAR’).

  3. As considered later in this judgment under Ground 7 – Lizard Ground, the Commission (at (210)-(216)) considers the Department’s assessment of the newly identified (potentially endangered) species, the Legless Lizard, and concludes in its Reasons (at par (220)) that the impacts on the Legless Lizard were “capable of being managed through appropriate conditions of consent” and that further investigations, surveys and research were needed to effectively manage and protect the species. The Commission imposes a number of conditions including conditions B63(i) and B63(j) which require MACH to demonstrate how the Project would be carried out in a manner that avoids or minimises to the greatest extent practicable any serious or irreversible damage to the Legless Lizard’s survival.

  4. In its Reasons (at par (217)) the Commission records that it agrees with the Department that the biodiversity impacts of the Project had been appropriately minimised and that residual biodiversity impacts could be appropriately offset. The Commission imposes conditions of consent requiring the retirement of biodiversity credits and preparation of a “Biodiversity Management Plan”.

Ground 1 – Resources SEPP Ground

DAMSHEG’s position

  1. In relation to this ground, and Grounds 2, 3 and 4, by way of background, DAMSHEG submits that the reasoning and findings of the Commission should be closely considered in the light of the fact that the Commission received, but did not “grapple” with, the following cogent, credible and uncontradicted evidence from a range of eminent scientists, researchers, and authoritative government agencies (referencing, in particular, evidence received from Prof Sackett):

  1. That all emissions, including Scope 3 emissions, released when fossil fuels are combusted (by any downstream end user) “must be included when considering environmental and social effects, including environmental and social effects to NSW”. In this regard, the Project’s Scope 3 emissions amount to 0.06% of all yearly global emissions;

  2. Irrespective of where in the world the greenhouse gas has been emitted, the effect of climate change is global. Because this effect is global, the concept of a “global carbon budget” should be utilised to estimate the speed and magnitude by which emission reductions must occur to meet a target global warming limit. In this context, the Project alone could erode the global carbon budget by more than half that consumed by the entire State of NSW from 2023 until it (presumably) reaches net zero by 2050. Additionally, the Project is one of only 650 similarly sized (in a greenhouse gas sense) global projects across energy, transport, agriculture, and industry that would “spend” the remaining global carbon budget;

  3. Australia contributes to what is called the “Production Gap” – being the disconnect between the intention to produce more fossil fuels and simultaneously seek to reduce emissions to meet the Paris Agreement. This is because Australia is a key “enabler” of the generation of greenhouse gases from fossil fuels, being the world’s fifth largest producer of coal, the second leading exporter of coal (by weight), and the largest exporter of black coal. Specifically, Australia’s extraction-based emissions from fossil fuel (coal and gas) production are expected to double by 2030 compared to 2005 levels. Therefore, although Australia is party to the Paris Agreement, Australia is simultaneously working against global warming being held to 1.5ºC through large volumes of Scope 3 emissions associated with its fossil fuel production which is primarily for export;

  4. Recent analysis indicates that 95% of Australia's coal reserves must stay in the ground for the world to have a 50% chance of holding global warming to a 1.5% increase. Similarly, the International Energy Agency’s global energy sector roadmap for net zero emissions by 2050 lists, as a major milestone, that no new or extended coal mines be approved, beginning in 2021; and

  5. The devastating effect that climate change will have in NSW is incontrovertible, including that Australia is one of the most vulnerable of all developed countries to climate change.

  1. In relation to Ground 1, DAMSHEG submits that the Commission was required to take into account matters set out in s 4.15(1)(a)(i) of the EPA Act, which, in turn, required the Commission to consider cl 2.20(1)(c) and cl 2.20(2) of the Resources SEPP.

  2. DAMSHEG submits that as the words “greenhouse gas emissions” in cl 2.20(1)(c) of the Resources SEPP include Scope 3 emissions (Kepco Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 (‘Kepco’) at [139]-[140] and [179] (Preston CJ of LEC)), and as “downstream emissions” in cl 2.20(2) includes Scope 3 emissions, cl 2.20(1) required the Commission to consider whether conditions should be imposed to minimise Scope 3 emissions to the greatest extent practicable.

  3. DAMSHEG submits that MACH can point to no part of the Reasons where consideration was given to whether conditions should be imposed on Scope 3 emissions, and that the Commission simply agreed with the Department AR, which it erroneously adopted in circumstances where no conditions in relation to Scope 3 emissions were recommended (and none imposed). DAMSHEG contends that it may therefore be concluded that Scope 3 emissions were not considered, despite there being a mandatory duty to do so.

  1. DAMSHEG submits that the approach of the Commission is different to the manner in which a differently constituted commission had dealt with similar matters as considered in Kepco (where the proponent had applied for development consent to construct a thermal coal mine and the commission found that the development proposal failed to contain steps minimising greenhouse gas emissions, in particular, Scope 3 emissions) where the commission gave specific consideration to whether discrete conditions could have been imposed regarding Scope 3 emissions, and found that they could not.

  2. DAMSHEG also points to Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110; (2021) 252 LGERA 221 (‘Mullaley’) (Preston J), where a community action group contended that a decision of a (differently constituted) commission to grant development consent for a new coal seam gas field project was invalid and the Court found that the commission had not erred in law as it had provided an extensive explanation for why it was not placing conditions on Scope 3 emissions (on the basis that the Scope 3 emissions were “not within the direct control of the proponent of the development”). DAMSHEG submits that in the present circumstances, there were methods available to impose specific conditions relevant to Scope 3 emissions such as, for example, imposing conditions to restrict export to countries who are not parties to the Paris Agreement. In substance, DAMSHEG’s concern is that the Commission did not even consider whether specific conditions could be imposed to minimise Scope 3 emissions.

  3. DAMSHEG further submits that, contrary to the obligation in cl 2.20(2) of the Resources SEPP, the Commission did not consider any assessment of “downstream emissions” in the context of applicable State or national policies. And, that the analysis in its Reasons (at pars (126)-(136)) of a limited number of international, national and State policies was perfunctory and did not address matters raised by cl 2.20.

  4. In considering international policies, the Commission only referred to the Paris Agreement and simply notes in its Reasons (at pars (126)-(127)) that Scope 3 emissions are “counted” in the downstream consumer country.

  5. The only national policies referred to by the Commission were the National Greenhouse and Energy Reporting Scheme (‘NGERS’) and the Emissions Reduction Plan where the Commission notes in its Reasons (at par (128)) that the NGERS and the Emissions Reduction Plan did not require the reporting of Scope 3 emissions.

  6. In relation to State policies, the Commission in its Reasons (at pars (131)-(132)) simply referred to the policies identified in the Department AR but did not separately name the policies. The Department AR referred to the Net Zero Plan; the NSW Government's Strategic Statement on Coal Exploration and Mining in NSW (2020); the NSW Government’s Upper Hunter Strategic Regional Land Use Plan; and the NSW Government’s Hunter Regional Plan 2036; and also made reference to the CCPF simply noting that the government’s objective was to reach net-zero emissions by 2050 and for NSW to be more resilient to climate change.

  7. Moreover, despite making an express finding that Scope 1 and Scope 2 emissions were consistent with current national and NSW policy settings and commitments, the Commission remained silent as to whether the same applied to Scope 3 emissions.

  8. DAMSHEG submits that the above demonstrates that the Commission failed to address the task assigned by cl 2.20(2) of the Resources SEPP because the Department did not have regard to “all” applicable State and national policies regarding greenhouse gas emissions. More particularly, there was no consideration of any assessment of Scope 3 emissions at all (on the basis that the Commission considered that Scope 3 emissions will be counted by the downstream consumer country). Further, the Commission did not consider key parts of the CCPF (including the NSW Government committing to take “emissions savings actions”, adopting certain policy directions such as – creating investment certainty by managing the transition of the energy system; reducing risks to public and private assets arising from climate change; reducing climate change impacts on health and well-being; and managing impacts on natural resources).

  9. Moreover, as the Commission states that it agrees with and adopts the Department's assessment (in the Department AR), and, in circumstances where the Department provided no recommended conditions which dealt with minimising Scope 3 emissions (such that the Department did not consider whether conditions could be imposed to minimise Scope 3 emissions), by adopting the Department’s approach, the Department’s errors became the Commission’s errors: Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1521; (2008) 162 LGERA 154 at [95] (Buchanan J); Peko-Wallsend at 30-31.

MACH’s position

  1. In relation to this ground and Grounds 2 to 5, all of which deal with the Commission’s treatment of greenhouse gas emissions, MACH submits that the Court, conscious that it is engaged in judicial review and not merits review, should carefully consider the factual background and the detailed material considered by, and the reasoning of, the Commission, and submits that DAMSHEG’s contentions do not arise from a fair reading of the Reasons when the real matters in issue are understood in context. In particular, MACH notes three additional factual background matters that provide context.

  2. First, the EIS addressed greenhouse gas emissions in various places and sets out a “quantitative assessment of potential greenhouse gas emissions” as well as detailing mitigation measures including the implementation of an adaptive management approach. The EIS also contained an “Economic Assessment” which assessed the potential environmental costs associated with greenhouse gas emissions.

  3. Second, the Department AR, having identified greenhouse gas emissions as a “key assessment issue”, and having acknowledged that global transition away from fossil fuel was required to meet the changes presented by climate change, expressed the view that the Project was “consistent with” the objectives of the Emissions Reduction and the NSW Government's Strategic Statement on Coal Exploration and Mining in NSW (2020), which recognise that in the short to medium term there will be a strong global demand for thermal coal. The Department also indicated that it was aware of community concerns about greenhouse gas emissions and the costs associated with climate change and had “carefully considered additional emissions over the life of the mine including past mining…”, concluding that, on balance, the benefits of the Project outweigh the costs.

  4. Third, the Commission addressed the topic of greenhouse gas emissions in various places in its Reasons. The Commission appreciated that while Scope 3 emissions were not counted towards domestic emissions under the Paris Agreement, their impact is still felt globally. The Commission identified greenhouse gas emissions and climate change as a “key issue”, in particular, in its Reasons (at pars (125)-(161)), which included consideration of Australia’s obligations under the Paris Agreement; Commonwealth policies (including the NGERS, Emissions Reduction Plan, and the Commonwealth’s commitment to a 43% reduction in greenhouse gas emissions by 2030); as well as State policies (including NSW Government targets, the CCPF, and the Net Zero Plan). The Commission also addressed the Project’s estimated Scope 1 and 2 emissions as well as Scope 3 emissions. And, identified the various assessments set out in the Department AR, the greenhouse gas assessment accompanying the EIS, and the updated greenhouse gas calculations provided by MACH.

  5. In the light of the above material before the Commission, MACH submits, first, that the Court would not accept DAMSHEG's position that the Commission simply “adopted” the reasoning and view of the Department in relation to greenhouse gas emissions in circumstances where the Department AR was only one of the documents considered, and given weight, by the Commission. Specifically, there is evidence in its Reasons (at pars (125)-(161)), that the Commission’s consideration of greenhouse gas emissions and the Resources SEPP extended well beyond the material contained in the Department AR.

  6. Secondly, to the extent DAMSHEG submits that the Department conducted itself “in error”, the Court would accept that the decision under challenge is the Commission's decision and not any anterior conduct of the Department. Further, the fact that the Department did not consider whether or not to recommend a specific condition in relation to Scope 3 emissions does not establish that the Department did not “consider” whether or not to recommend such a condition. The Department's wording (in the Department AR (at pars (190)-(218) and (332)-(338)), read fairly, indicates that the Department was engaging with cl 2.20 of the Resources SEPP throughout its assessment (although using the reference to the predecessor to cl 2.20, being cl 14 of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (‘Mining SEPP’), which uses the same terms).

  7. Thirdly, the Commission's duty was a duty to consider whether or not to attach conditions of the identified kind and the Commission, itself, was not under a duty to minimise greenhouse gas emissions (including Scope 3 emissions) to the greatest extent practicable. The text of cl 2.20(1) of the Resources SEPP recognises a discretion in the consent authority not to attach conditions directed to minimising greenhouse gas emissions. As such, the Court would not accept the fact that a condition in relation to Scope 3 emissions was not attached, as establishing a failure to consider whether or not to attach a condition of the kind.

  8. Fourthly, the Commission did not breach cl 2.20(2) of the Resources SEPP in circumstances where its duty was no more than to consider an assessment of greenhouse gas emissions and it did so in its Reasons (at pars (16), (139)-(142), (143)-(149) and (156) in respect of Scope 1 and 2 emissions) and (at pars (150)-(151) in respect of Scope 3 emissions). Moreover, the Commission identified the estimated quantum of Scope 3 emissions and acknowledged that they would contribute to climate change (which had the potential to impact future generations) and, the Reasons, read fairly, expressed the view that those emissions were appropriately regulated and accounted for through broader national policies and agreements (at par (150)). This view was well open to the Commission.

  9. Fifthly, the Court would not infer that the Commission failed to consider parts of the CCPF in breach of cl 2.20(2) as suggested by DAMSHEG, where the Commission did take those matters into account and, in any event, was not under a duty to set out, word for word, each sentence of evidence it says it has considered. The Commission expressly indicated that it had considered certain international, national and State policies and there is no reason for the Court to conclude otherwise.

Consideration

  1. In relation to a number of the grounds raised by DAMSHEG, and putting to one side MACH’s submission that the Commission did not “grapple” with a significant amount of the expert climate-related material before it, I accept that there were essentially three uncontroversial matters before the Commission which provide context for the conduct and reasoning of the Commission. First, that anthropogenic climate change poses global environmental risks and that additional greenhouse gas emissions exacerbate the problem irrespective of where they occur. Second, that many countries through the Paris Agreement (and Australia’s participation and adoption of consequential policies) seek to limit the extent of climate change and, while this aim is centred in the Paris Agreement, regulatory settings throughout the world call for a fundamental transition away from emissions activities to achieve net zero emissions. Both the Paris Agreement and related regulations have a goal of keeping temperature increases well below 2ºC above the pre-industrial level. Third, it is clear that there will be an ongoing demand for coal, at least in the short to medium term, which is not inconsistent with the Paris Agreement as it requires a managed transition away from a reliance on fossil fuels.

  2. I accept MACH’s submission that these uncontroversial matters provide context for the Commission's reasoning in circumstances where, at least in relation to the above three matters, there was no substantial factual controversy for the Commission to resolve. I also take into account DAMSHEG’s submission that there was some disagreement between the various expert reports, and I have read DAMSHEG’s compilation of references to “Climate Impact Facts in Dispute” (which became MFI 7). It is in these circumstances that MACH suggests, and I accept, that the Commission's consideration and reasoning in relation to a number of matters of concern raised by DAMSHEG (in Grounds 1 to 5) was predicated on an acceptance that greenhouse gas emissions, regardless of the characterisation of the scope ascribed to such emissions, would have an adverse impact on anthropogenic climate change.

  3. In accordance with Singh at [47], primary consideration should be given to the reasons of a decision-maker for the exercise of the power to show why the power was exercised in the way it was (and that there is an intelligible justification for the decision). As will be seen, I consider the reasoning of the Commission for why it decided as it did, is shown – in the sense that the Reasons provide an intelligible justification for its decision.

  4. DAMSHEG contends that the Commission first, did not consider whether conditions should be issued to minimise Scope 3 emissions to the greatest extent possible; and second, did not consider an assessment of Scope 3 emissions having regard to all applicable State or national policies concerning greenhouse gas emissions. For the following reasons, and not without some concern, I do not accept DAMSHEG’s position in relation to either limb of this ground. I will deal with each contention.

  5. While I accept MACH’s submission that the anterior conduct of the Department is not necessarily determinative, primarily because the Department is not under any obligation pursuant to cl 2.20 of the Resources SEPP, I find that it cannot be inferred that the Department AR did not give consideration to conditions relating to the reduction of greenhouse gas emissions (including Scope 3).

  6. Leaving aside the incorrect reference to s 14(1) of the Mining SEPP (as opposed to cl 2.20(1) of the Resources SEPP) in the Department AR, as noted above, DAMSHEG maintains that the Department itself did not deal with the equivalent cl 2.20(1) in any event because its recommended conditions did not address minimising Scope 3 emissions and, as such, it “did not consider whether conditions could minimise Scope 3 emissions”.

  7. The Department, while describing the three categories of greenhouse gas emissions and providing the estimates of each (noting that 98% of the total greenhouse gas emissions were Scope 3 emissions, and dealing in detail with Scope 1 and Scope 2 emissions) and noting its earlier concern regarding the adequacy of the detail in the EIS in relation to greenhouse gas emissions, considered the further “detailed response” provided by MACH. Thereafter, the Department acknowledged the “global transition away from fossil fuels … to meet commitments under the Paris Agreement…”, and also dealt with the continuation of the short to medium term demand for coal and noted that the Project was consistent with the objectives of “Australia’s Long-Term Emissions Reduction Plan and the NSW Government’s Strategic Statement on Coal Exploration and Mining in NSW (2020)” in the Department AR (at pars (207) and (335)). The Department AR (at pars (331)-(338)) specifically provided:

“331.   The Department recognises that GHG emissions and climate change is a matter of interest to many members of the broader community, and was raised in many public submissions.

332.   The assessment indicates that the majority (98%) of GHG emissions generated by the project comprise Scope 3 emissions that would arise from the downstream consumption of coal by end users.

333.   Scope 1 and Scope 2 emissions associated with the project would have a relatively low emissions intensity compared to other coal mining projects, which reflects the relatively low strip ratios at the mine, and the existing brownfields nature of the project, with significant existing mine infrastructure and established mining areas.

334.   The project’s emissions have been accounted for in the NSW GHG emissions projections in the Department’s Net Zero Plan.

335.   The Department also accepts that the project is consistent with the objectives of Australia’s Long-Term Emissions Reduction Plan and the NSW Government’s Strategic Statement on Coal Exploration and Mining in NSW (2020), which recognise that in the short to medium term there will still be a strong global demand for thermal coal to satisfy society’s basic power generation needs.

336.   The Department also recognises that the project would provide significant social and economic benefits for the Upper Hunter and wider region, including:

•   continued direct employment at the mine for an average of 600 people, and up to 830 people;

•   approximately 450 direct/indirect jobs in the Upper Hunter, and 650 in the wider Hunter region;

•   $1.4 billion (NPV) net contribution to gross state product;

•   $20 million (indexed) in contributions to Muswellbrook Shire Council, and $6 million (indexed) to Upper Hunter Shire Council, towards community enhancement projects.

337.   The Department has recommended a comprehensive and precautionary suite of conditions to ensure that the project would comply with acceptable criteria and standards, that the impacts would be consistent with MACH’s predictions, and that residual impacts would be effectively minimised, managed and/or compensated.

338.   These include conditions requiring MACH to:

•   acquire the properties predicted to be significantly affected by noise and or air quality, upon request from the landowner;

•   provide additional mitigation measures on residences predicted to be significantly or moderately affected, upon request of the landowner;

•   obtain all necessary water licences required for the project;

•   offset the project’s residual biodiversity impacts;

•   minimise visual and lighting impacts, and prepare comprehensive rehabilitation strategies and plans;

•   limit GHG emissions, and implement measures to continually reduce emissions;

•   enter into planning agreements with Muswellbrook Shire Council and Upper Hunter Shire Councils to provide substantial contributions towards community projects; and

•   prepare a comprehensive suite of management plans, and undertake annual reviews and periodic independent audits.”

  1. Further, while there is a question as to what specific inference can be drawn from the absence of a specific reference in the Department AR to Scope 3 emissions, I do not draw the inference suggested by DAMSHEG. The Department was aware that 98% of the Project’s total greenhouse gas emissions were generated by downstream burning of coal, nevertheless dealt with the need to minimise such emissions, and actually proposed certain conditions (albeit only for Scope 1 and Scope 2 emissions).

  2. Although there were no conditions proposed by the Department in relation to Scope 3 emissions, there was express reference in the Department AR (at par (335)) to the Emissions Reduction Plan and the NSW Government's Strategic Statement on Coal Exploration and Mining in NSW (2020) (which as noted earlier, related to the Department’s (and later the Commission’s) recognition that there would remain a strong global demand for coal to satisfy “society’s basic power generation needs”). Moreover, simply because the Department did not recommend conditions specifically directed to Scope 3 emissions, does not, on its own, establish that it did not consider (in the sense I have noted above) whether or not to recommend such a condition. This is clear from the wording in the Department AR (at pars (190)-(218) and (332)-(338)).

(b)   in accordance with the Statement of Commitments and conditions of this consent.

Notes:

•   The project layout plans are shown in Appendix 2.

•   The Statement of Commitments is reproduced in Appendix 3.

…

4.   The conditions of this consent and directions of the Secretary prevail to the extent of any inconsistency, ambiguity or conflict between them and a document/s listed in condition 2(a) above. In the event of an inconsistency, ambiguity or conflict between any of the document/s listed in condition 2(a) the most recent document prevails to the extent of the inconsistency, ambiguity or conflict.

…

5.   The Applicant may carry out mining operations on the site until 22 December 2026.

…”

  1. Relevantly, “Mining operations” is defined in the existing consent as:

“The carrying out of mining including the extraction, processing, stockpiling and transportation of coal on the Site and the associated removal, storage and/or placement of vegetation, topsoil overburden and reject material.”

  1. As noted above (at [181]), “site” is defined as “[t]he land listed in Appendix 1” which is a schedule of all parcels of land which comprise the entirety of the area the subject of the existing consent and the “project layout plans” referred to in Condition 2(a) are in Appendix 2 of the existing consent, and comprise “Figure 1 – Conceptual Project Layout Plan at 2021”, “Figure 2 – Conceptual Project Layout Plan at 2025”, “Figure 3 – Approved Surface Disturbance Plan” (defined in this judgment as Figure 3 – Annexure E) and “Figure 4 – Conceptual Final Landform”.

  2. I consider the conditions noted (and the incorporated “project layout plans”) provide for mining activities to be undertaken on the entirety of the site. Although DAMSHEG points to a number of changes brought about by earlier modifications to the original consent, none of those sought to, or effected, the narrowing of the concept of the defined development being “Construction and operation of the Mt Pleasant open cut coal mine and associated infrastructure”, nor narrowed the definition of “site”.

  3. Although DAMSHEG attaches more significance to “Figure 1 – Conceptual Project Layout Plan at 2021” and “Figure 2 – Conceptual Project Layout Plan at 2025” (in Appendix 2 of the existing consent), those figures although indicating “Active Mining Area” and “Active Overburden Emplacement Area” do not supplant the identification of “Approximate Extent of Approved Surface Development” in Figure 3 – Annexure E and, I find, do not purport to be a complete statement of what has been approved especially in relation to “surface disturbance”, even accepting that some areas described in the existing consent as “active infrastructure area” and “rehabilitation area” had changed in MOD 3.

  4. Further, to the extent that “Figure 4 – Conceptual Final Landform” (in Appendix 2 of the existing consent) is also relied upon by DAMSHEG, I note that it only provides for a “Conceptual Final Landform” and does not purport to define what vegetation clearance may be permitted as it relates primarily to rehabilitation. In addition, Condition 2 provides “generally in accordance with”, which, in my view, militates against a narrow construction and must be seen to facilitate a liberal construction especially in relation to a large open cut coal mine.

  5. For the above reasons, I find that the existing consent, more particularly Condition 5 (incorporating the definition of “site”) and Figure 3 – Annexure E (specifically adopted pursuant to Condition 2 of Schedule 2 of the existing consent) provides appropriate indication as to the area in which surface disturbance was authorised.

  6. Ground 6 is not made out.

Ground 7 – Lizard Ground

  1. As noted at [14] above, after the public hearing on 7 and 8 July 2022, the Commission was informed by the Department (acting upon material from MACH) that the Legless Lizard recorded on the site was likely to be a species not previously identified and as such had not been listed as “threatened” under the BC Act. The Commission considered advice from the Department's Biodiversity Conservation Division (‘BCD’) stating that “because little is known about the species and its conservation needs such that land-based offsets [may] not be sufficient to mitigate impacts … based upon the information available to date it is apparent that further surveys and research are needed to effectively manage and protect the species in the wild”.

  2. The Commission stated in its Reasons (at par (220)) that it “agrees with both the Department and BCD that impacts to this species on Site are capable of being managed through appropriate conditions of consent” and in granting approval, the Commission imposed conditions requiring, first, that biodiversity credits are to be retired if the Legless Lizard is listed as a threatened species under the BC Act and/or the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) during the life of the consent (Condition B62); second, that a biodiversity management plan be prepared to the satisfaction of the Planning Secretary and implemented (Conditions B63 and B65); and third, that the biodiversity management plan must demonstrate how the proposed development will be carried out in a manner that “avoids or minimises to the greatest extent practicable any serious or irreversible damage to the survival of the [Legless Lizard]” (Condition B63(j)).

DAMSHEG’s position

  1. DAMSHEG contends that the Commission failed to consider the impacts of the proposed development on the Legless Lizard as required by s 4.15 of the EPA Act because it deferred consideration of the impacts on the species until after consent was granted and delegated consideration of that issue to the Planning Secretary.

  2. DAMSHEG submits that as Condition B63(j) requires the proponent to demonstrate (in the biodiversity management plan) how the proposed development will be carried out in a manner that avoids or minimises to the greatest extent practicable any serious or irreversible damage to the survival of the Legless Lizard, it does not impose a “clear limit” on the impact of the proposed development on the Legless Lizard. As such, the grant of the consent subject to this condition amounts to a constructive failure to determine whether the proposed development ought to be approved and on what conditions it ought to be approved.

  3. DAMSHEG contends that the potential impacts on the Legless Lizard by the Project are critical to the decision of whether or not to approve the proposed development and the Commission has not simply delegated to the Planning Secretary a supervisory role of some aspect of the proposed development but has, in fact, delegated the actual assessment of the impacts, which otherwise was required to be undertaken by the Commission itself. DAMSHEG contends that Condition B63 could alter the Project in a fundamental respect because it is not known whether the proposed development (or any aspect of it) will cause any serious or irreversible damage to the survival of the species and it is not known what measures will be required to avoid to the “greatest extent practicable” any serious or irreversible damage to the survival of the species. That question, and consequently the question of what development can be carried out, is inappropriately left to the Planning Secretary to resolve.

MACH’s position

  1. MACH accepts that the Legless Lizard was encountered on the site when little was known about the species and that “further surveys and research are needed to effectively manage and protect the species in the wild” (at par (213) of the Reasons). However, MACH submits that the Commission formed the view that the species located on the site was capable of being managed through appropriate conditions of consent (being Conditions B62, B63 and B65). As such, the imposition of such conditions did not defer or delegate consideration of the impacts of the proposed development on the Legless Lizard to the Planning Secretary.

  2. MACH submits that it is possible to take into consideration the likely impacts of the proposed development “even though the full significance of such impacts cannot be known with precision”: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (‘Zhang’) at [83] (Spigelman CJ). And, it is clear that the Commission took into account the potential impacts of the proposed development on the Legless Lizard in its Reasons. It was not necessary for the Commission to know precisely what would occur in order for the potential impacts to be taken into account and the Commission took into account such impacts at the appropriate level of generality. MACH contends that a consent would never be able to be granted if the standard a consent authority needed to meet was knowledge of the precise outcome of a potential impact.

  3. MACH submits that the Commission received and accepted advice from the BCD that further surveys and research were needed to effectively manage and protect the species. In direct response to that advice, the Commission imposed Condition B63(i) requiring MACH to obtain further surveys and undertake further research in relation to the Legless Lizard.

  4. MACH submits that Condition B63, by requiring a biodiversity management plan to be prepared to the satisfaction of the Planning Secretary, was, in fact, a dual requirement because the plan must, first, meet the necessary conditions in subparagraphs (a)-(m); and second, be to the satisfaction of the Planning Secretary. The Commission did not give the Planning Secretary the power to determine the impacts of the proposed development on the species rather, the Planning Secretary was given the power to approve measures to ameliorate the known impacts, namely, habitat loss and potential impact on species viability.

  5. MACH submits that the Commission did not leave for later consideration an important aspect of the development where such decision could alter the Project in a fundamental respect because the implementation of Condition B63(j) could not alter the proposed development in a fundamental respect: Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349 at 740 (Clarke JA).

  6. MACH further submits that conditions of consent do not need to have a “clear limit” as submitted by DAMSHEG, and that the line of authority considered in Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20 (‘Ulan’) relied upon by DAMSHEG, does not assist their position. In any event, as noted by Preston J at [78] of Ulan, “[r]etention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme”.

Consideration

  1. As DAMSHEG contends that the Commission constructively failed to exercise its statutory power under s 4.15(1) of the EPA Act by deferring and delegating for later consideration the impacts of the proposed development on the Legless Lizard, and MACH points to the Reasons and the conditions imposed, it is appropriate to consider the Commission’s conduct and findings more closely.

  2. In Part 5.7 (Biodiversity) of its Reasons, the Commission recorded (at pars (201)-(209)) details of the proposed development and the background to various concerns relating to the clearing of vegetation, areas of disturbance and a number of biodiversity assessment reports including the BDAR. The Commission detailed (at pars (210)-(216)) the further consideration given to the Legless Lizard after the public hearing. Under the heading “Commission’s Findings”, the Commission stated:

“…

220.   The Commission agrees with both the Department and BCD that impacts to this species on Site are capable of being managed through appropriate conditions of consent. The Commission has therefore imposed specific requirements for the Applicant’s Biodiversity Management Plan, which – among other relevant requirements – requires the Applicant to demonstrate how the Project will be carried out in a manner that avoids or minimises to the greatest extent practicable any serious or irreversible damage to the survival of Delma vescolineata, irrespective of whether it is listed as a threatened species under the BC Act and/or EPBC Act. Condition B62 imposed by the Commission sets out biodiversity credit requirements should the species be listed under the BC Act and /or the EPBC Act during the life of the consent. The Commission agrees with BCD that some offset obligations could be met by funding a conservation strategy for the species under the Saving our Species 2016-21 program.

221.   The Commission also agrees with BCD and the authors of Zootaxa (2022) that further investigations should be undertaken to support the management of this species. The Commission agrees with BCD that based on the information available to date, further surveys and research are needed to effectively manage and protect the species in the wild. The Commission has therefore imposed via condition B63(i) a specific requirement for the Applicant to investigate and identify habitat that supports populations in the wild of Delma vescolineata, as well as identifying and implementing measures to manage threats to that population.

222.   The Commission acknowledges concerns raised in submissions regarding habitat loss and the subsequent viability of Delma vescolineata. The Commission has imposed condition B63(j) which states that the Applicant must demonstrate how the Project will be carried out in a manner that avoids or minimises to the greatest extent practicable any serious or irreversible damage to the survival of Delma vescolineata.

…”

  1. The conditions referred to in the findings of the Commission and the parties’ submissions relevantly provide:

“Biodiversity Credits Required - Delma vescolineata

B62.   If the Legless Lizard, Delma vescolineata, is listed as a threatened species under the BC Act and/or EPBC Act during the life of this consent, or otherwise agreed by the Planning Secretary, the Applicant must retire the applicable biodiversity credits (consistent with the applicable Biodiversity Risk Weighting as per the relevant row in Table 9) within 2 years of the species being listed as a threatened species under the BC Act and/or EPBC Act.

The retirement of credits must be carried out in consultation with the Planning Secretary and BCD and in accordance with the Biodiversity Offsets Scheme of the BC Act, including the application of Ancillary Rules: Biodiversity conservation actions that may be relevant to Delma vescolineata published under clause 6.5 of the Biodiversity Conservation Regulation 2017.

…

Biodiversity Management Plan

B63.   The Applicant must prepare a Biodiversity Management Plan to the satisfaction of the Planning Secretary. This plan must:

(a)   be submitted for approval prior to the commencement of development under this consent;

(b)   be prepared by a suitably qualified and experienced person/s whose appointment has been endorsed by the Planning Secretary;

(c)   be prepared in consultation with BCD;

…

(h)   describe the measures to be implemented on the site to:

…

(vi)   manage potential impacts to Delma vescolineata, if it is listed as a threatened species under the BC Act and/or EPBC Act in consideration of any relevant Commonwealth Conservation Advice, Recovery Plan and Threat Abatement Plans;

(i)   investigate and identify habitat that supports populations in the wild of Delma vescolineata, and identify, and where relevant, implement measures to remove threats to that population;

(j)   demonstrate how development under this consent will be carried out in a manner that avoids or minimises to the greatest extent practicable any serious or irreversible damage to the survival of Delma vescolineata;

…

(m)   include details of who would be responsible for monitoring, reviewing, and implementing the plan.

…

B65.   The Applicant must implement the Biodiversity Management Plan as approved by the Planning Secretary.”

  1. Given the framework of the Reasons, in particular the commentary (at par (220)), and the specific conditions imposed in relation to the Legless Lizard which was not listed as a threatened species under the BC Act or the EPBC Act, I find that the reasoning and the imposition of the above conditions was an appropriate response to any suggested uncertainty as to potential impacts on the Legless Lizard. As such, I do not find that the Commission has left undetermined the issue of consideration of potential impacts to be determined by the Planning Secretary. The manner in which the conditions are expressed does not in my view cause the development consent to lack finality in circumstances where provision is made, specifically in Condition B62, for specific conduct if the Legless Lizard is listed as a threatened species under the BC Act and/or under the EPBC Act during the life of the consent, or indeed otherwise agreed by the Planning Secretary with the effect that MACH must retire the applicable biodiversity credits.

  2. The preparation of the biodiversity management plan in the manner provided for in Condition B63, and the requirement for its implementation in Condition B65, confirms that the Commission agreed with both the Department and the BCD that any impacts on the species are capable of being managed through appropriate conditions of consent. Although these conditions require that the biodiversity management plan demonstrates how the Project will be carried out in a manner that avoids or minimises to the greatest extent practicable any serious or irreversible damage to the survival of the Legless Lizard (again irrespective of whether it is listed as a threatened species or otherwise), I find that this indicates that the Commission was aware of the concerns raised in submissions regarding such matters as habitat loss and possible loss of viability.

  3. In evaluating the Reasons (at pars (217)-(223)), it is clear that although the Commission formed the view that further surveys and research were needed to effectively manage potential impacts and protect the species, this could be achieved by way of imposing appropriate conditions of consent. I find that the Commission’s reasoning indicates that there was an assessment of the potential impacts and that any impacts could be sufficiently managed through the various conditions. Further, I accept that a consent authority does not need to understand – in any final way or with precision – the precise nature of the potential impacts in order to take them into account: Zhang at [83].

  4. I accept MACH’s submission that the Commission took into account the potential impacts at the appropriate level of generality in view of the material before it. The requirement for there to be a plan of management which meets the necessary conditions in subparagraphs (a) and (m) of Condition B63, as well as being to the satisfaction of the Planning Secretary, is not redolent of error. I find that the Planning Secretary was not delegated the power to determine the impacts of the Project on the Legless Lizard, but rather, was given the power to approve measures to ameliorate the known potential impacts – namely, habitat loss and potential impact on species viability.

  5. It follows that I do not find that the conditions leave an inappropriate or unlawful opening for later consideration of an important aspect of the development. I do not consider that any further developments nor the implementation of Condition B63(j) in relation to the Legless Lizard could alter the Project in a fundamental respect. I accept MACH’s contention that even with the imposition of Condition B63, the proposed development would remain a mining development approved subject to conditions of consent.

  6. I do not accept DAMSHEG’s position that, unless there is a “clear limit” on the impact of the proposed development on the species, then the condition(s) are beyond power. DAMSHEG in reply submissions, asserts that this ground is not concerned with the validity of conditions but rather the Commission’s deferral and delegation of an important consideration as to whether the Project can have a serious or irreversible impact on the Legless Lizard to the Planning Secretary. However, in circumstances where I consider that s 4.38(1)(a) of the EPA Act entitles a consent authority to determine a development application in respect of SSD by granting consent “on such conditions as the consent authority may determine”, I consider that the present conditions are not uncertain as to be outside of the power for the Commission to approve this SSD: Ulan at [77], [80]. In addition, I note that there is no common law principle that the exercise of statutory power must be certain and final in order to be valid where a condition may only be invalid, by lacking in certainty or finality, if it falls outside of a class of conditions which the statute expressly or impliedly permits: Ulan at [49]-[50].

  1. Further, Div 4.7 of the EPA Act specifically deals with SSD and s 4.38(1)(a) mostly relates to large scale, complex development where, and as noted in Ulan at [78], retention of practical flexibility in implementing a development including its conditions are likely desirable.

  2. In the above circumstances, I accept the submission of MACH that conditions B63(i) and (j) (along with the other conditions referred to above) are beneficial conditions which are calculated to have the effect of narrowing the impacts of the Project on the Legless Lizard over time and although not directed to the precautionary principle (as was being considered in Ulan at [99]), these are conditions which provide for an adaptive management response which is an acceptable approach in dealing with uncertainty as to potential impacts.

  3. Ground 7 is not made out.

Ground 8 – Air Quality Ground

DAMSHEG’s position

  1. DAMSHEG contends that the Commission failed to adhere to the standard of reasonableness in reaching the following related conclusions, first, in the Reasons (at par (121)), that the air quality impacts “can be adequately minimised, managed or at least compensated to achieve an acceptable level of environmental performance”; and second, (at par (270)), that there are “no significant adverse social impacts anticipated” by the Project.

  2. DAMSHEG points to various material before the Commission including MACH’s Human Health Assessment report (in Appendix R to the EIS) which provided a health impact assessment with respect to both incremental and cumulative air quality impacts arising from the Project. The report recognised the health impacts of exposure to particulate matter (‘PM’), particularly PM2.5 and PM10, and stated:

“The available evidence does not suggest that there is a threshold below which health effects do not occur. Hence there are likely to be health effects associated with background levels of PM2.5 and PM10 even where the concentrations are below the current guidelines.”

  1. DAMSHEG points to public submissions which raised concerns about emissions from the Project in the context of the existing poor air quality in Muswellbrook and surrounding areas including advice in a letter dated 12 March 2021 from Hunter New England Local Health District to the Department, which relevantly stated:

“…Muswellbrook is already experiencing in all years, PM2.5 levels which exceed the current NEPM standards … The results show multiple exceedances of PM10 levels.

There is no evidence of a threshold below which exposure to particulate matter (PM) is not associated health effects.

Therefore, it is important that all reasonable and feasible measures are taken to minimise human exposure to PM, even where assessment criteria are met. Both the modelling, and the actual air monitoring results for Muswellbrook (2012 – 2019), show exceedances of NEPM standards for PM10 and PM2.5. …”

  1. The advice further noted that while there are already multiple sources contributing to the PM levels in the Muswellbrook area, this is not an acceptable reason allowing further increases to PM levels that may impact on the health of local residents.

  2. DAMSHEG provided the Court with a detailed summary of the material that was before the Commission relating to adverse health impacts arising from the “air pollution” that affects residents living in Muswellbrook and surrounds (MFI 5), which DAMSHEG submits also constitute social impacts. The material included various annexures to the EIS, expert reports of Dr da Silva and Dr Askland, a number of the submissions made to the Commission, and references to the transcript of oral submissions made during the public hearing.

  3. DAMSHEG submits that the Department AR, despite noting that the predicted residual air quality impacts are not insignificant and extend the impacts of the existing mine due to its extended operation period, concluded that the impacts of the Project can be adequately minimised, managed or at least compensated to achieve an acceptable level of environmental performance. DAMSHEG notes that the Department did not refer to the fact that there were likely to be health impacts associated with air emissions from the Project even where dust criteria are met.

  4. DAMSHEG submits that the Commission disregarded MACH’s own evidence (noted at [226] above) that the local area had higher levels of cardiovascular and respiratory disease, and points to the reports of Dr da Silva and Dr Askland provided by DAMSHEG which were not identified in the Reasons (at par (111)), where, as noted above at [39], the Commission listed the seven expert reports it had considered in relation to air quality impacts.

  5. DAMSHEG submits that the Commission’s conclusion that the air quality impacts from the Project can be minimised, managed or at least compensated to achieve an acceptable level of environmental performance, was legally unreasonable in circumstances where there was compelling evidence before the Commission to the following effect: first, that there is no threshold below which exposure to PM is not associated with health risks and that the Project will have an incremental (that is increased) impact on health risks in the local area; second, that the local area already experiences concentrations above acceptable air pollution (and PM) standards from time to time; and, third, that concern regarding cumulative air quality impacts has been expressed through public submissions and the Hunter New England Local Health District. Despite this evidence, DAMSHEG submits that the Commission failed to make findings in relation to the health impacts (and associated and related social impacts) on the local community as a result of dust and air pollution. As such, the Commission's conclusion in its Reasons (at par (121)) was incompatible with the undisputed evidence before it and was so unreasonable that no reasonable decision-maker could have made that decision.

  6. Similarly, and repeating the above submissions, DAMSHEG further submits that the conclusion in the Reasons (at par (270)), that there were “no significant adverse social impacts anticipated” was also legally unreasonable because it was incompatible with the health impacts referred to in the material before the Commission such that no reasonable decision-maker could have reached that conclusion.

MACH’s position

  1. MACH accepts that while the Commission was obliged to act in a legally reasonable way, it clearly made specific findings in respect of air quality as articulated in the Reasons (at par (121)), finding that there was “no significant adverse social impacts anticipated”. As such, MACH rejects the contention that the Commission was unreasonable.

  2. MACH contends that the Commission was conscious of the impact of the Project on air quality and took that into account and that the evidence before the Commission was that the incremental impact of the Project on PM emissions would generally be <1µg/m³. In any event, the Commission specifically considered the objections and submissions to the proposed development that were based on air quality impacts and, having considered those impacts, imposed Conditions B28 to B30 obliging the proponent to ensure that all reasonable and feasible measures are employed to ensure that PM standards are not exceeded. Furthermore, the Commission adopted specific standards in Condition B28 based on the NSW Environment Protection Authority (‘EPA’) Air Quality Assessment Standards (including “Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales”). MACH submits there is nothing legally unreasonable in setting standards that the proponent is required to meet by reference to the EPA standards.

  3. MACH further submits that the Commission’s view was not that the proposed conditions would avoid all PM emissions or potential negative impacts but that the conditions imposed would have the effect that the impacts were “adequately minimised [or] managed … to achieve an acceptable level of environmental performance” (at par (121) of the Reasons). Moreover, it is clear that the Commission was aware that this is a mining project where benefits and detriments are inevitable and as such there was no error in the Commission's approach.

  4. In relation to social impacts, MACH submits that the Commission was not of the view that there were no adverse social impacts but was of the view that there were no “significant adverse social impacts” in its Reasons (at par (270)). The Commission clearly took into account potential negative social impacts and concluded that the positive social benefits (including employment) outweigh those negative impacts. As such, legal unreasonableness is not established by pointing out that the Commission did not accept all of the submissions made to it.

Consideration

  1. The Commission’s consideration of air quality matters (including greenhouse gas emissions) is noted at [39]-[41] above. In its Reasons (at pars (110)-(124)), the Commission noted the expert reports and other material it had considered including evidence in relation to predicted exceedances of cumulative annual average air-quality criteria in the Department AR. The Commission also noted the objections to the Project received on the basis of air quality impacts. Having considered the material before it including MACH’s Supplementary Air Quality Advice and the Department’s Supplementary Air Quality Peer Review, the Commission found that the potential air quality impacts of the Project had been adequately assessed and imposed conditions requiring mitigation and management of those impacts. In doing so, the Commission recorded that it agreed with the Department AR and recognised that although the anticipated impacts are similar to those of the existing consent, the impacts would be extended due to the Project’s extended operation period up to 22 December 2048. Moreover, the Commission recorded that it was satisfied that the proponent had adequately addressed the EPA requirements and found in its Reasons (at par (121)) that the impacts of the Project can be adequately minimised, managed or at least compensated to achieve an acceptable level of environmental performance.

  2. The Commission imposed Conditions B28 to B30 which set specific air quality criteria for the Project, and Condition B31 which details air quality and greenhouse gas operating conditions for the Project. Condition B31(c) requires the proponent to implement both proactive and reactive air quality mitigation measures “to ensure compliance with the relevant conditions of this consent”.

  3. In relation to various close receivers, the Commission imposed Conditions C1 and C12 to C19, which provides for land acquisition requirements in relation to those affected receivers. Furthermore, as considered at [150] above, the Commission imposed Condition B32 which requires the preparation of an AQGGM Plan that must set out the measures to be implemented to ensure compliance with the air quality criteria.

  4. In the above circumstances, and conscious of the applicable legal principles at [28]-[32], I find that Ground 8 is not made out. My reasons may be shortly stated.

  5. First, as it is not alleged that the Commission failed to consider either air quality or social impacts per se, the usual strictures about legal unreasonableness must be kept in mind, in particular that a decision is not legally unreasonable just because reasonable minds may reach a different conclusion about the correct or preferable decision (Li at [28]), and that it is rare to find unreasonableness where expressed reasons provide a justification for a determination (SZVFW at [84]). I find that the Commission adequately considered the submissions (and the evidence) marshalled before it in relation to air quality and associated impacts. The Commission received significant material directly related to air quality (to which my attention was specifically drawn by the summary of the relevant evidence in MFI 5). The Commission noted the expert material in its Reasons at pars (110)-(118), with particular emphasis on the Department AR, and further expert material marshalled at the request of the EPA. The Commission noted the submissions from Muswellbrook Shire Council and Upper Hunter Shire Council each raising concerns relating to air quality. And, at pars (73)-(75), acknowledged that many submissions had been received raising concerns in relation to air quality and dust, and associated health impacts, and the exacerbation of the present poor state of air quality in the Hunter region due to many factors including farming and agriculture.

  6. Further, given the extensive submissions and evidence in relation to greenhouse gas emissions (considered earlier in this judgment) and the Commission’s analysis and conclusions specifically in relation to air quality in its Reasons (at pars (110)-(124)), I do not consider the failure to specifically refer to the reports of Dr da Silva and Dr Askland indicates that the Commission was not aware of the concerns raised therein.

  7. Second, the Commission’s imposition of the conditions noted at [239]-[240] above, clearly shows that the Commission was aware of, and sought to address, the concerns in relation to air quality (including PM) and formed the view that, with the imposition of conditions, the impacts (including air quality and social impacts) can be adequately minimised and managed and not avoided.

  8. Third, the language of “adequately minimised, managed or at least compensated to achieve an acceptable level of environmental performance” in the Reasons clearly involves notions of evaluation and acceptability of the impacts and does not involve or imply a denial by the Commission that the Project has negative impacts, including health impacts. I find that the Commission was satisfied, particularly in light of the mitigation measures, that an acceptable level of environmental performance was able to be achieved. As submitted by MACH, even emphatic disagreement with such a conclusion does not equate with legal unreasonableness.

  9. Fourth, I find that the Commission’s conduct and conclusions, again, involved an evaluative judgment and polycentric decision-making. The above noted reasoning shows that the Commission was not ignorant of the fact that PM is harmful. The Commission’s consideration provided in the Reasons involved the weighing of many factors (including both positive and negative impacts) in relation to the continuation and extension of mining activities on the site – albeit for a not insignificant period of time and clearly not without significant environmental and health impacts. Remaining conscious that the present proceedings involve judicial review and that the Commission in these circumstances enjoys certain decisional freedom, I consider that the finding in the Reasons (at par (121)) was one that was reasonably available to the Commission.

  10. In relation to the second limb of Ground 8, the Commission's findings in relation to social impact in its Reasons (at par (270)) are as follows:

“The Commission considers that the Applicant has assessed the social impact of the Application in sufficient detail. The Commission agrees with the Department that there are no significant adverse social impacts anticipated. The Commission is of the view that on balance, the social benefits associated with permanent and construction-related employment outweigh any potential negative social impacts.”

  1. Although there were many submissions that raised the negative impacts of mining in the local community, it is clear that the Commission was aware of these matters and took into account, inter alia, the assessment in the Department AR, which concluded that the social impacts of the Project were essentially a continuation (with some obvious prolongation) of existing social impacts associated with the existing mine – including both positive and negative impacts. The Department advised that the negative social impacts generally focused on people who reside close to the mine (through amenity impacts such as noise and dust) while positive impacts were experienced by a wider geographic spread of residents (particularly by way of increased employment and economic opportunities). The commentary in the Department AR in relation to social impacts (including health impacts) was considered and adopted by the Commission in its Reasons (at pars (269) and (270)) where the Commission recorded the Department's assessment in relation to the proponent’s intention to implement “measures to mitigate negative social impacts, including stakeholder engagement, working with industry groups, targeting local employment and training, and supporting Aboriginal stakeholder groups”.

  2. For the above reasons, I do not consider that the Commission failed to adhere to the standard of reasonableness in relation to its conclusions in its Reasons (at pars (121) and (270)).

  3. Ground 8 is not made out.

Conclusion

  1. DAMSHEG has not established any of the grounds of review of the Commission’s decision to grant development consent to the Project. The amended summons should be dismissed.

  2. The usual costs order in judicial review proceedings is that costs follow the event. The parties did not address at the hearing whether the Court, in the exercise of its discretion under r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) or otherwise, should decide not to make an order that DAMSHEG pay MACH’s costs of the proceedings. If MACH seeks its costs, it should file written submissions within three weeks of the date of this judgment and DAMSHEG should then file written submissions in response within a further three weeks. The question of costs will be decided on the papers unless either party makes an application for an oral hearing. If MACH does not seek an order that DAMSHEG pay its costs within the timeframe set out above, the Court will note that there is no order as to costs.

Orders

  1. The orders of the Court are:

  1. The amended summons is dismissed.

  2. If MACH Energy Australia Pty Ltd (‘MACH’) seeks an order that Denman Aberdeen Muswellbrook Scone Healthy Environment Group Incorporated pay their costs of the proceedings, MACH is to file and serve written submissions on costs by 9 September 2024.

  3. If MACH does seek a costs order under Order (2), Denman Aberdeen Muswellbrook Scone Healthy Environment Group Incorporated is to file and serve written submissions on costs by 30 September 2024.

  4. If either party seeks an oral hearing on the question of costs, the party is to request an oral hearing in its written submissions filed under Order (2) or (3).

  5. The parties have liberty to restore the matter for directions on 2 days’ notice.

Addendum and further Order (9 September 2024)

  1. I gave judgment and made orders in these proceedings on 19 August 2024 providing MACH with an opportunity to consider whether it would seek an order that DAMSHEG pay its costs of the proceedings.  As MACH has confirmed that it does not seek an order that DAMSHEG pay its costs, I make the following further order:

  1. No orders as to costs.

**********

Annexure A (158593, pdf)

Annexure B (138783, pdf)

Annexure C (150016, pdf)

Annexure D (2112218, pdf)

Annexure E (1361145, pdf)

Amendments

28 October 2024 - Addendum and further Order added at par [254].

Decision last updated: 28 October 2024

Most Recent Citation
Cases Citing This Decision

1

Ross v Randwick City Council [2025] NSWLEC 89