Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 4)

[2014] NSWLEC 200

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 4) [2014] NSWLEC 200
Hearing dates:	28 October 2014, further written submissions 7, 12 November 2014
Decision date:	19 December 2014
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See paragraph 26
Catchwords:	APPEAL – finalisation of conditions of consent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pt 3A Environmental Planning and Assessment Regulation 2000 cl 8F(1)(c) Mining Act 1992
Cases Cited:	Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 129 Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 3) [2014] NSWLEC 130 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174; (2008) 161 LGERA 391
Category:	Consequential orders (other than Costs)
Parties:	Hunter Environment Lobby Inc (Applicant) Minister for Planning and Infrastructure (First Respondent) Ashton Coal Operations Pty Ltd (Second Respondent)
Representation:	Counsel: Mr R D White (Applicant) Mr S Free with Mr N Kelly (First Respondent) Mr A Galasso SC with Mr C Ireland (Second Respondent) Solicitors: Environmental Defender's Office (Applicant) Legal Services Branch, Department of Planning and Infrastructure (First Respondent) McCullough Robertson Lawyers (Second Respondent)
File Number(s):	11154 of 2012

Judgment

1. I have delivered Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 129 (HEL (No 2)), Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 3) [2014] NSWLEC 130 (HEL (No 3)) and a document providing my comments and some conclusions on the draft conditions of consent provided by the parties. I heard further argument and received further written submissions from the parties on unresolved conditions of consent. I now provide a draft of final conditions of approval for Ashton’s project. These are in draft simply to enable a last check by the parties in the interests of accuracy given the number of alternatives I have had to consider. I identify most of the changes and provide some brief reasons in relation to the contentious conditions addressed most recently by the parties.

Schedule 2

2. In condition 2 the word generally will remain for the reasons advanced by the Respondents. The word generally has been deleted from conditions 8, 12 and 16.

3. I will require an amended condition 10A to that sought by the Applicant. The Applicant sought a condition as identified on 28 October 2014 that:

10A    The Proponent must not carry out any development work on the Project site (including salvage of Aboriginal objects or harm to Aboriginal objects or sites) until it has:

(a) obtained a valid mining lease under the Mining Act 1992 for open cut mining over the whole of the Project site (including Properties No. 129 and 167L) and

(b) acquired the freehold of property 129.

4. I determined in HEL (No 2) at [379]-[387] that there was no prohibition under the Environmental Planning and Assessment Act 1979 (EPA Act) on the Court considering the SEOC project in circumstances where Ashton does not own all the areas of land over which approval is sought for an open cut coal mine. A large part of the SEOC project including parts of the mine pit and the final void/sedimentation pond are to be carried out and located on property 129 which is presently owned by Mrs Bowman. At [385]-[387] I accepted the Respondents’ submission that I was not precluded from considering the proposal given that Environmental Planning and Assessment Regulation 2000 (EPA Regulation) cl 8F(1)(c) provides for this to occur. I held that it was not appropriate that I speculate on matters under the Mining Act 1992 and I could not exercise powers under that Act in this case which concerns planning matters under the EPA Act.

5. The Applicant seeks to have a condition imposed which provides that the SEOC project cannot proceed until a mining lease has been obtained over property 129 and Ashton has acquired the freehold of property 129. Contrary to the Respondents’ submissions that to impose condition 10A (in some form) would be contrary to my conclusion in HEL (No 2) that land ownership was not determinative of the appeal, the issue now is different. In HEL (No 2) the issue under consideration was whether approval could be given at all in these circumstances. I have concluded that the SEOC project as a whole can proceed subject to appropriate conditions under s 75J of the EPA Act and I am finalising those conditions.

6. I do not accept the Minister’s submission that such a condition in some form undermines the statutory scheme in cl 8F(1)(c) of the EPA Regulation that approval for Pt 3A projects may be sought and given notwithstanding the absence of owner’s consent. That submission gives the clause more work to do than appears on its face. It does not address the Court’s power it is presently exercising to impose conditions on an approval. The clause states that the consent of the owner of land over which an application for a mining project is to be made is not required as considered in HEL (No 2).

7. Ashton submitted that the Applicant’s proposed condition 10A(a) reverses the order of statutory approvals recognised in the EPA Act and the Mining Act. A Pt 3A approval is required first, followed by a mining lease which must be granted if it is substantially consistent with the Pt 3A approval. Section 75V of the EPA Act states that a mining lease which is substantially consistent with an approval under Pt 3A cannot be refused. Reliance was placed on Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174; (2008) 161 LGERA 391 as supporting this analysis. That case considered the operation of s 75V of the EPA Act and s 62 of the Mining Act in circumstances surrounding the grant of a mining lease and provides some force for that argument. Ashton also agreed with the Minister that if Mrs Bowman objects to a mining lease over her land there is no prospect of Ashton being granted a mining lease over her land. I will not impose condition 10A(a).

8. I also note by way of background that the process for obtaining mining leases under the Mining Act can be staged. Ashton submitted that the practical way forward for a project faced with an intransigent property owner would be to carve out the landowner’s land or part of it on which the improvements are situated from any mining lease or to apply for the mining lease in stages to allow more time for any negotiations with the current owner, Mrs Bowman, to play out. The Court and other parties were informed for the first time on 28 October 2014 that a mining lease ML1696 was obtained by Ashton on 16 May 2014 over an area in the north of the proposed project area in reliance on the PAC approval granted for the project in 2012. I have been advised that the PAC approval is not stayed despite the lodgement of this appeal against the approval. That process suggests that the Applicant’s submission that Ashton can potentially seek multiple mining leases over different parts of the mine pit area not including property 129 enabling mining up to Mrs Bowman’s property boundary with substantial environmental consequences for that property, placing pressure on Mrs Bowman to sell her land, is correct.

9. The issue for the Court is whether condition 10A(b) or an amended form satisfies the Newbury test (Newbury District Council v Secretary of State for the Environment [1981] AC 578). That requires that conditions of approval must be for a planning purpose, must reasonably and fairly relate to the development permitted and not be so unreasonable that no reasonable planning authority could have imposed it. The project which I have assessed requires the utilisation of property 129 to win the resource and locate the proposed final void, an important part of site remediation at the end of the project as this will accept saline water from the mining project on a permanent basis. Until Ashton has control of property 129 it will not be able to implement the project as assessed by the Court.

10. Unlike any other property in Table 1 Condition 1 Sch 3, the owners of which can choose to exercise acquisition rights, Mrs Bowman’s property falls within the mine footprint. That the owner of that property has the option of acquisition rights under Table 1 is not to the point. If the owner chooses not to sell, lease or licence property 129 to Ashton then the project as I have assessed and approved it cannot proceed. Some form of condition 10A is appropriate in these circumstances. It is necessary and appropriate to impose a variation of condition 10A(b) to the effect that property 129 must be purchased, leased or licensed by Ashton.

11. I do not agree with Ashton that such a condition is contrary to the Newbury test. It does have a planning purpose, relates to the development the subject of this approval and is not unreasonable in the circumstances of this case. Ashton submitted the condition is infected by an ulterior purpose of strengthening Mrs Bowman’s commercial negotiating position. There is no evidence to support that submission. I also do not agree with the Respondents’ submissions that the accepted planning resolution of this issue in this jurisdiction is the acquisition rights in Sch 3 Condition 1 Table 1 which includes property 129. I am not aware of any jurisprudence in this Court that confirms that submission in relation to the Court exercising its discretion in imposing appropriate conditions of consent.

12. Ashton complains that its development plans can be potentially thwarted by Mrs Bowman refusing to sell, lease or license her land. Ashton accepts that it requires Mrs Bowman’s consent to mine on her land. It also requires her land whether purchased, leased or licensed, as reflected in Ashton’s submissions that there are management options it may wish to pursue other than purchasing property 129. This can be reflected in a condition. The Court’s role is to assess the environmental and planning impacts of the proposed project. The Court can and should impose conditions which ensure that the project it has assessed in its entirety will be carried out in a way which addresses all aspects of the public interest. That includes consideration of fairness to the current or future owners of property 129.

13. The substantial reason for imposing the condition is that there is an unassessed environmental impact that potentially arises if I do not impose an amended condition 10A(b), namely what is the impact on the environment of the SEOC project if property 129 is not able to be purchased, leased or licensed by Ashton from Mrs Bowman or later owners. An amended condition 10A arguably creates certainty, which is otherwise lacking, that the project in its entirety will be carried out. The project which I have assessed as a whole requires utilisation of property 129 both to win the resource and to implement the final landform including importantly the final void. If that cannot be achieved a new project application will be necessary regardless of whether I impose this condition or not.

14. I have modified the timing provision in condition 5A to enable Ashton to seek an extension of time for the project. It may be that another provision is needed to enable the Secretary to extend other timeframes specified in the consent in the event of delay in commencement of the project.

15. I do not understand Ashton’s submission that it is precluded from securing a modification of the project under s 75W from the Minister if condition 10A(b) in some form is imposed.

Ashton-owned private land

16. A number of conditions raise the issue of whether some environmental controls should be applied to land owned by Ashton, which may be tenanted. I consider that it is generally preferable that mine-owned residences have the same protection as other residences. In the particular circumstances of this case relatively few mine-owned residences are within areas adversely affected by the SEOC project. Some of these are likely to be tenanted. The Respondents provided sensible submissions on why it is appropriate in this case that a different less protective provision apply to mine-owned land, which I accept. The proposed conditions provide for information to be given to tenants and for them to exit premises without penalty. I will not delete numerous references to private land in the conditions in Sch 2 condition 8 and Sch 3, conditions 4, 5, 6, 11, 19 and 24.

17. Condition 24 remains.

Schedule 3

18. Condition 1 Table 1 has been amended in accordance with changes proposed by the Minister.

19. I have imposed condition 2A which provides for particular compensation provisions for the owners of properties 130 and 182 largely in the terms agreed by the parties. Where these are not agreed I have adopted the Applicant’s proposed terms and Ashton’s in part.

20. I have not accepted the Applicant’s proposed changes in relation to the low permeability barrier detailed design in conditions 35 and 38.

21. The word generally is deleted from conditions 46 and 58.

22. I have not accepted the Applicant’s proposals for condition 32.

Schedule 4

23. Land acquisition condition 7A which has been revised to reflect amendments suggested by the Minister and the Applicant has been imposed in relation to land acquisition.

Schedule 5

24. Condition 1 has been amended to provide for the CCC to be consulted on the environmental management plan.

25. Condition 2(h) and condition 4 have been amended to include the Applicant’s proposed amendment. Condition 10 has been partly amended as proposed by the Applicant.

26. The orders I intend to make shortly are that the appeal is upheld and the conditions for consent attached as annexure A (presently in draft form) will be made subject to any final clarification the parties consider necessary in relation to, for example, timing.

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Addendum 

On 17 April 2015 Project Application Number MP 08_0182 was approved subject to the conditions in Annexure A.

Annexure A (6.62 MB, pdf)

Amendments

14 May 2015 - Inserted Addendum and Annexure.

Decision last updated: 14 May 2015