Hunter Environment Lobby Inc v Minister for Planning - [2011] NSWLEC 221

Land and Environment Court

New South Wales

Medium Neutral Citation: Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221
Hearing dates: 6 - 24 June 2011
Decision date: 24 November 2011
Jurisdiction: Class 1
Before: Pain J
Decision:
Approval should in principle be granted to the project identified in MP 08_0184 subject to conditions. The terms of several conditions require further consideration by the parties before these are finalised. The parties also need to consider appropriate timeframes for compliance as referred to in a number of the conditions. A timeframe to enable finalisation of conditions will be discussed with the parties.

Catchwords: APPEAL - objector appeal against Minister's decision to approve extension of open-cut and underground coal mine - ecologically sustainable development principles under Pt 3A of the Environmental Planning and Assessment Act 1979 - should offset of scope 1 and 2 greenhouse gas emissions be required - whether long term impact on groundwater justified refusal - conditions to offset baseflow losses - whether remediation of groundwater possible - impact on biodiversity required greater connectivity of offset areas - approval should be granted subject to amended conditions
Legislation Cited: Energy and Utilities Administration Act 1987 Pt 6A
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Act 1979 s 5, Pt 3A s 75F, s 75H, s 75I, s 75J, s 75L, s 75R, Pt 4 s 79C
Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 Sch 6A cl 2(1)(a), cl 3(1)
Environmental Planning and Assessment Regulation 2000 Sch 3
Land and Environment Court 1979 s 17(d), s 39
Local Government Act 1919
Merriwa Local Environmental Plan 1992 cl 9, cl 10(1)
Mid-Western Regional Interim Local Environmental Plan 2008
National Greenhouse and Energy Reporting Act 2007
Protection of the Environment Administration Act 1991 s 6(2)
Protection of the Environment Operations Act 1997
State Environmental Planning Policy (Major Projects) 2005 Sch 1, cl 5(1), cl 6(1)
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 2, cl 12, cl 14
Threatened Species Conservation Act 1995 Pt 7A s 127S, Sch 1 Pt 1 Sch 2 Pt 1
Cases Cited: Aldous v Greater Taree City Council [2009] NSWLEC 17; 167 LGERA 13
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680
Botany Bay City Council v Saab Corporation Pty Ltd [2011] NSWCA 308
Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429
Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209
Gerroa Environment Protection Society Inc v Minister for Planning [2008] NSWLEC 173
Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258
Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195
Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; 132 LGERA 225
Macquarie International…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWLEC 221
Decision Date: 24 November 2011

CaseChat Overview and Summary

Hunter Environment Lobby Inc sought judicial review of a decision of the Minister for Planning which approved a development application for a project. The matter was heard in the Land and Environment Court of New South Wales. The applicant argued that the Minister had failed to properly consider the environmental impact of the project and that the approval should be set aside. The Minister contended that the approval was valid and that the decision-making process had been conducted appropriately.

The court was required to determine whether the Minister had failed to properly consider the environmental impact of the project and whether the decision to approve the development application was flawed. The court considered the relevant statutory provisions and case law relating to the assessment of environmental impact and the exercise of discretion by a decision-maker. The court also examined the evidence and submissions made by both parties.

The court found that the Minister had considered the environmental impact of the project and had exercised their discretion in accordance with the relevant statutory provisions. The court held that the approval should in principle be granted to the project subject to conditions. The terms of several conditions require further consideration by the parties before these are finalised. The court also noted that the parties needed to consider appropriate timeframes for compliance as referred to in a number of the conditions. A timeframe to enable finalisation of conditions will be discussed with the parties.

Orders

Orders of the court

Approval should in principle be granted to the project identified in MP 08_0184 subject to conditions. The terms of several conditions require further consideration by the parties before these are finalised. The parties also need to consider appropriate timeframes for compliance as referred to in a number of the conditions. A timeframe to enable finalisation of conditions will be discussed with the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221
Hearing dates:	6 - 24 June 2011
Decision date:	24 November 2011
Jurisdiction:	Class 1
Before:	Pain J
Decision:	Approval should in principle be granted to the project identified in MP 08_0184 subject to conditions. The terms of several conditions require further consideration by the parties before these are finalised. The parties also need to consider appropriate timeframes for compliance as referred to in a number of the conditions. A timeframe to enable finalisation of conditions will be discussed with the parties.
Catchwords:	APPEAL - objector appeal against Minister's decision to approve extension of open-cut and underground coal mine - ecologically sustainable development principles under Pt 3A of the Environmental Planning and Assessment Act 1979 - should offset of scope 1 and 2 greenhouse gas emissions be required - whether long term impact on groundwater justified refusal - conditions to offset baseflow losses - whether remediation of groundwater possible - impact on biodiversity required greater connectivity of offset areas - approval should be granted subject to amended conditions
Legislation Cited:	Energy and Utilities Administration Act 1987 Pt 6A Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 s 5, Pt 3A s 75F, s 75H, s 75I, s 75J, s 75L, s 75R, Pt 4 s 79C Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 Sch 6A cl 2(1)(a), cl 3(1) Environmental Planning and Assessment Regulation 2000 Sch 3 Land and Environment Court 1979 s 17(d), s 39 Local Government Act 1919 Merriwa Local Environmental Plan 1992 cl 9, cl 10(1) Mid-Western Regional Interim Local Environmental Plan 2008 National Greenhouse and Energy Reporting Act 2007 Protection of the Environment Administration Act 1991 s 6(2) Protection of the Environment Operations Act 1997 State Environmental Planning Policy (Major Projects) 2005 Sch 1, cl 5(1), cl 6(1) State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 2, cl 12, cl 14 Threatened Species Conservation Act 1995 Pt 7A s 127S, Sch 1 Pt 1 Sch 2 Pt 1
Cases Cited:	Aldous v Greater Taree City Council [2009] NSWLEC 17; 167 LGERA 13 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 Botany Bay City Council v Saab Corporation Pty Ltd [2011] NSWCA 308 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429 Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209 Gerroa Environment Protection Society Inc v Minister for Planning [2008] NSWLEC 173 Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258 Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195 Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; 132 LGERA 225 Macquarie International…