KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) - [2020] NSWLEC 179

Land and Environment Court

New South Wales

Medium Neutral Citation: KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) [2020] NSWLEC 179
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Applicant’s Further Amended Summons filed 3 June 2020 is dismissed.
(2) Costs are reserved.
(3) The exhibits are returned.

Catchwords:
JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent for new coal mine – state significant development – construction and application of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 in assessment of greenhouse gas impacts of new coal mine – no failure to refer project to Minister for Regional Water for advice as required by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requirements in considering impacts on water resources – no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternative sources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed

Legislation Cited:
Associations Incorporation Act 2009 (NSW)
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) reg 19
Environmental Planning and Assessment Act 1979 (NSW) ss 1.3, 2.2, 2.7, 2.8, 2.9, 4.5, 4.6, 4.15, 4.18, 4.36, 4.38, 4.40, former ss 23B, 89D
Environmental Planning and Assessment Amendment Act 2017 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW) reg 100
Interpretation Act 1987 (NSW) s 33
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cll 2, 12AA, 12AB, 12, 12A, 13, 14, 15, 16, 17, 17B
State Environmental Planning Policy (State and Regional Development) 2011 cl 8A, Sch 1
Uniform Civil Procedure Rules 2005 (NSW) r 6.24

Cases Cited:
Al Maha v Huajan Investments (2018) 233 LGERA 170; [2018] NSWCA 245
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Alexandria Landfill v Transport for NSW [2020] NSWCA 165
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31
Ballas v Department of Education (State of NSW) [2020] NSWCA 86
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343
Ex parte King; Re Blackley (1938) 38 SR (NSW) 483
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Fattah v Minister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31
Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160; [2015] NSWLEC 61
Gilbank v Bloore (No 2) [2012] NSWLEC 273
Gloucester Resources v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7
Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116
Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30
KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38
Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 1
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288
Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224
P&C Cantarella Pty Ltd v Egg Marketing Board for the State of NSW [1973] 2 NSWLR 366
Parramatta City Council v Hale (1982) 47 LGERA 319
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000] FCA 1113
Plaintiff M61/2010E v the Commonwealth (2010) 243 CLR 319; [2010] HCA 41
Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40 FCR 332
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56
SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299; [2008] NSWCA 356
Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Wollar Progress Association Incorporated v Wilpingjong Coal Pty Ltd [2018] NSWLEC 92

Category: Principal judgment
Parties: KEPCO Bylong Australia Pty Ltd (Applicant)
Independent Planning Commission (First Respondent)
Bylong Valley Protection Alliance Incorporated (Second Respondent)
Representation:
COUNSEL:
R Lancaster SC and D Hume (Applicant)
Submitting appearance (First Respondent)
S Free SC and R McEwen (Second Respondent)
SOLICITORS:
Minter Ellison (Applicant)
Crown Solicitor’s Office (First Respondent)
Environmental Defender’s Office (Second Respondent)

File Number(s): 19/392909

Judgment

Judicial review of refusal of new coal mine by Independent Planning Commission

The Applicant KEPCO Bylong Australia Pty Ltd (KEPCO) has commenced judicial review proceedings challenging the refusal of a coal mine in the Bylong Valley by the First Respondent, the Independent Planning Commission (IPC).
The IPC is a corporation constituted by s 2.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). It is a continuation of the same legal entity as the Planning Assessment Commission (PAC) established under s 23B of the EPA Act immediately before the repeal of that section. The IPC has filed a submitting appearance. The Second Respondent, the Bylong Valley Protection Alliance Incorporated (the BVPA), is a registered incorporated association under the Associations Incorporation Act 2009 (NSW). It was joined as a party pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) in KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38.
KEPCO’s Further Amended Summons filed 3 June 2020 seeks a declaration that the purported determination by the IPC by way of refusal on 18 September 2019 (the Refusal Decision) in relation to State Significant Development Application No SSD 6367 (the DA) lodged by KEPCO for the Bylong Coal Project (the Project) is invalid and of no effect. An order remitting the DA to the IPC, constituted by individuals different to those who constituted it in making the Refusal Decision, for re-determination in accordance with law is also sought.
There are eight grounds of judicial review (Grounds 5 and 10 were not pressed at the hearing). KEPCO alleges that by reason of the errors alleged in the grounds of review, each of which is a jurisdictional error according to KEPCO, the Refusal Decision was invalid and should be set aside. KEPCO bears the onus of proof on the balance of probabilities of establishing the errors it alleges: Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 at [2] citing SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23 at [8]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] (Gummow J); Gilbank v Bloore (No 2) [2012] NSWLEC 273 (Gilbank v Bloore (No 2)) at [48].

Legislation

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the EPA Act as in force between 1 July 2019 and 31 October 2019 provided:

Part 2 Planning administration
Division 2.3 Independent Planning Commission
…
2.8   Members of Commission
(1)   The Independent Planning Commission is to consist of such members as are appointed by the Minister.
(2)   One member of the Commission is, in the instrument of appointment or a subsequent instrument, to be appointed as the chairperson of the Commission.
(3)   Each member is to have expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, soil or agricultural science, hydro-geology, mining or petroleum development, traffic and transport, law, engineering, tourism or government and public administration.
(4)   In appointing a member of the Commission, the Minister is to have regard to the need to have a range of expertise represented among the Commission’s members.
(5) The Minister may appoint additional members of the Commission for the purposes of exercising specific functions of the Commission. An additional member is not required to have expertise in an area referred to in this section but is required to have expertise in an area relevant to the functions the member is to exercise.
(6)   Without limiting subsection (5), the Minister may appoint as an additional member for the purposes of that subsection a person who is a member of a subcommittee of the Commission. Any such appointment may be limited to a particular matter or matters, in addition to any limitation relating to specific functions.
2.9   Functions of Commission
(1)   The Independent Planning Commission has the following functions:
(a)   the functions of the consent authority under Part 4 for State significant or other development that are (subject to this Act) conferred on it under this Act,

…
Part 4 Development assessment and consent
…
Division 4.2 Consent authority
4.5   Designation of consent authority
For the purposes of this Act, the consent authority is as follows:
(a)   in the case of State significant development—the Independent Planning Commission (if the development is of a kind for which the Commission is declared the consent authority by an environmental planning instrument) or the Minister (if the development is not of that kind),
…
4.6   Provisions relating to Independent Planning Commission
The following consent authority functions of the Independent Planning Commission are to be exercised by the Planning Secretary on behalf of the Commission:
(a)   receiving development applications and determining and receiving fees for the applications,
(b)   undertaking assessments of the proposed development and providing them to the Commission (but without limiting the assessments that the Commission may undertake),
(c)   obtaining any concurrence, and undertaking any consultation, that the consent authority is required to obtain or undertake,
(d)   carrying out the community participation requirements of Division 2.6,
(e)   notifying or registering the determinations of the Commission,
(f)   the functions under section 4.17 in relation to the provision of security,
(g)   the determination of applications to extend the period before consents lapse,
(h)   any other function prescribed by the regulations.
…
Division 4.3 Development that needs consent (except complying development)
…
4.15   Evaluation
(1)   Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a)   the provisions of:
(i)   any environmental planning instrument, and
(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii)   any development control plan, and
(iiia)   any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v)   (Repealed)
that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c)   the suitability of the site for the development,
(d)   any submissions made in accordance with this Act or the regulations,
(e)   the public interest.

(2)   Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:
(a)   is not entitled to take those standards into further consideration in determining the development application, and
(b)   must not refuse the application on the ground that the development does not comply with those standards, and
(c)   must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3)   If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:
(a)   subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and
(b)   a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

…
4.18   Post-determination notification
(1)   The consent authority must, in accordance with the regulations, notify its determination of a development application to:
(a)   the applicant, and
(b) in the case of a development application for consent to carry out designated development, each person who made a submission under Schedule 1, and
(c)   such other persons as are required by the regulations to be notified of the determination of the development application.

(2)   If the consent authority is not the council, the consent authority must notify the council of its determination.
(3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under Schedule 1 by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.
(4)   For the purposes of this section, designated development includes State significant development that would be designated development but for section 4.10(2).
…
Division 4.7 State significant development
4.36   Development that is State significant development
(1)   For the purposes of this Act, State significant development is development that is declared under this section to be State significant development.
(2)   A State environmental planning policy may declare any development, or any class or description of development, to be State significant development.
…
4.38   Consent for State significant development
(1)   The consent authority 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.

…
(6)   If the determination under section 3.34 (Gateway determination) for a planning proposal declares that the proposed instrument is principally concerned with permitting the carrying out of State significant development that would otherwise be wholly prohibited:
(a)   the proposed instrument may be made only by the Independent Planning Commission under a delegation from the Minister, and
(b)   the development application for the carrying out of that development may be determined only by the Independent Planning Commission under a delegation from the Minister.

…
4.40 Evaluation of development application (s 4.15)
Section 4.15 applies, subject to this Division, to the determination of the development application.
…

Environmental Planning and Assessment Regulation 2000 (NSW)

Regulation 100 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as in force between 13 September 2019 and 14 November 2019 provided:

Part 6 Procedures relating to development applications
…
Division 10 Post-determination notifications
100 Notice of determination
(1) For the purposes of section 4.18 (1) of the Act, a notice of the determination of a development application must contain the following information—
…
(c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 4.17 (11) of the Act), the consent authority’s reasons for the refusal or for the imposition of those conditions,

…

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW)

Regulation 19 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) provides:

Part 2 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2017
…
19 References to Minister as consent authority for State significant development
(1) In this clause—
document includes any Act, statutory instrument, contract, agreement or other instrument issued or made under or for the purposes of any Act or statutory or other instrument.
(2) A reference in section 7.14 or 7.16(3) of the Biodiversity Conservation Act 2016, or in any other document, to the Minister for Planning as consent authority for an application for development consent for State significant development includes a reference to the Independent Planning Commission as consent authority for any such application as a consequence of the enactment of section 4.5(a) of the Act by Schedule 4.1 to the Environmental Planning and Assessment Amendment Act 2017.
…

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

Relevant provisions of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) as in force between 30 August 2019 to 12 December 2019 provided:

Part 1 Preliminary
…
2   Aims of Policy
The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries—
(a)   to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and
(b)   to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and
(b1)   to promote the development of significant mineral resources, and
(c)   to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources, and
…
Part 3 Development applications—matters for consideration
12AA (Repealed)
12AB   Non-discretionary development standards for mining
(1)   The object of this clause is to identify development standards on particular matters relating to mining that, if complied with, prevents the consent authority from requiring more onerous standards for those matters (but that does not prevent the consent authority granting consent even though any such standard is not complied with).
(2) The matters set out in this clause are identified as non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of mining.
…
(7)   Aquifer interference Any interference with an aquifer caused by the development does not exceed the respective water table, water pressure and water quality requirements specified for item 1 in columns 2, 3 and 4 of Table 1 of the Aquifer Interference Policy for each relevant water source listed in column 1 of that Table.
….
(9)   In this clause—
Aquifer Interference Policy means the document entitled NSW Aquifer Interference Policy published by the NSW Office of Water, Department of Primary Industries and in force as at the commencement of this clause.
…
12   Compatibility of proposed mine, petroleum production or extractive industry with other land uses
Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must—
(a)   consider—
(i)   the existing uses and approved uses of land in the vicinity of the development, and
(ii)   whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and
(iii)   any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and

(b)   evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a)(i) and (ii), and
(c)   evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a)(iii).
12A   Consideration of voluntary land acquisition and mitigation policy
…
(2)   Before determining an application for consent for State significant development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider any applicable provisions of the voluntary land acquisition and mitigation policy and, in particular—
(a)   any applicable provisions of the policy for the mitigation or avoidance of noise or particulate matter impacts outside the land on which the development is to be carried out, and
(b)   any applicable provisions of the policy relating to the developer making an offer to acquire land affected by those impacts.

…
13 Compatibility of proposed development with mining, petroleum production or extractive industry
…
(2)   Before determining an application to which this clause applies, the consent authority must—
(a)  consider—
(i)   the existing uses and approved uses of land in the vicinity of the development, and
(ii)   whether or not the development is likely to have a significant impact on current or future extraction or recovery of minerals, petroleum or extractive materials (including by limiting access to, or impeding assessment of, those resources), and
(iii)   any ways in which the development may be incompatible with any of those existing or approved uses or that current or future extraction or recovery, and

(b) evaluate and compare the respective public benefits of the development and the uses, extraction and recovery referred to in paragraph (a) (i) and (ii), and
(c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii).

14   Natural resource management and environmental management
(1)   Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following—
(a)   that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,
(b)   that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,
(c)   that greenhouse gas emissions are minimised to the greatest extent practicable.

(2)   Without limiting subclause (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.
(3)   Without limiting subclause (1), in determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director-General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.
15   Resource recovery
(1)   Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider the efficiency or otherwise of the development in terms of resource recovery.
(2)   Before granting consent for the development, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at optimising the efficiency of resource recovery and the reuse or recycling of material.
(3)   The consent authority may refuse to grant consent to development if it is not satisfied that the development will be carried out in such a way as to optimise the efficiency of recovery of minerals, petroleum or extractive materials and to minimise the creation of waste in association with the extraction, recovery or processing of minerals, petroleum or extractive materials.
16   Transport
(1)   Before granting consent for development for the purposes of mining or extractive industry that involves the transport of materials, the consent authority must consider whether or not the consent should be issued subject to conditions that do any one or more of the following—
(a)   require that some or all of the transport of materials in connection with the development is not to be by public road,
(b)   limit or preclude truck movements, in connection with the development, that occur on roads in residential areas or on roads near to schools,
(c)   require the preparation and implementation, in relation to the development, of a code of conduct relating to the transport of materials on public roads.

(2)   If the consent authority considers that the development involves the transport of materials on a public road, the consent authority must, within 7 days after receiving the development application, provide a copy of the application to—
(a)   each roads authority for the road, and
(b)   the Roads and Traffic Authority (if it is not a roads authority for the road).

17   Rehabilitation
(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 the rehabilitation of land that will be affected by the development.
(2)   In particular, the consent authority must consider whether conditions of the consent should—
(a)   require the preparation of a plan that identifies the proposed end use and landform of the land once rehabilitated, or
(b)   require waste generated by the development or the rehabilitation to be dealt with appropriately, or
(c) require any soil contaminated as a result of the development to be remediated in accordance with relevant guidelines (including guidelines under clause 3 of Schedule 6 to the Act and the Contaminated Land Management Act 1997), or
(d)   require steps to be taken to ensure that the state of the land, while being rehabilitated and at the completion of the rehabilitation, does not jeopardize public safety.

Part 4AA Mining and petroleum development on strategic agricultural land
…
Division 2 Development applications
17B   Assessment of development applications
(1)   Before determining an application for development consent for mining or petroleum development that is accompanied by a gateway certificate, the consent authority must—
(a)   refer the application to the Minister for Regional Water for advice regarding the impact of the proposed development on water resources, and
(b)   consider—
…
(ii)   any written advice provided by the Minister for Regional Water in response to a referral under paragraph (a), and
…

(2)   In determining an application for development consent for mining or petroleum development that is accompanied by a gateway certificate, the consent authority must consider whether any recommendations set out in the certificate have or have not been addressed and, if addressed, the manner in which those recommendations have been addressed.
(3) The Minister for Regional Water, when providing advice under this clause on the impact of the proposed development on water resources, must have regard to—
(a)   the minimal impact considerations set out in the Aquifer Interference Policy, and
(b)   the other provisions of that Policy.

KEPCO lodged the DA in 2015. The IPC was appointed in 2018 as the consent authority by virtue of cl 8A of the State Environmental Planning Policy (State and Regional Development) 2011 (State and Regional Development SEPP) as provided by s 4.5(a) of the EPA Act. Mining is specified as state significant development (SSD) in Sch 1 of the State and Regional Development SEPP.

Statement of agreed facts/chronology

A number of background facts were helpfully agreed by the parties in the following Statement of Agreed Facts (SOAF):

The Development Application Process
1   On or around 17 January 2014, the Applicant made a written request to the Secretary of the Department of Environment & Planning (Department) for Secretary’s Environmental Assessment Requirements (SEARs) for the Project. This written request was accompanied by a document entitled “Bylong Coal Project – Background Document” dated 17 January 2014.
2   On or around 12 March 2014, the Project (EPBC 2014/7133) was determined to be a ‘controlled action’ under the Commonwealth EPBC Act, and that the Project will be assessed under the bilateral agreement with NSW.
3   On or around 15 April 2014, a Conditional Gateway Certificate was issued under the Mining SEPP for the Project.
4   On or around 23 June 2014, the Secretary of the Department wrote to the Applicant attaching the SEARs with respect to the Project.
5   On or around 11 November 2014, the Secretary of the Department wrote to the Applicant attaching the (revised) SEARs with respect to the Project. The Conditional Gateway Certificate formed attachment 3 to the SEARs.
6   On or around 22 July 2015, the Applicant lodged with the Department an application form for state significant development dated 22 July 2015 (Development Application).
7   On or around 1 September 2015, the Applicant lodged with the Department a document entitled “Bylong Coal Project – Environmental Impact Statement (EIS)” dated September 2015 prepared by Hansen Bailey (EIS Main Report), which included Appendices labelled A - AG.
8   Between 23 September 2015 and 6 November 2015, the Department placed the EIS Main Report and the Appendices thereto on public exhibition and received submissions.
9   On 12 December 2015, the Paris Agreement was adopted by a conference of the parties to the United Nations Framework Convention on Climate Change, including Australia.
10   In a letter dated 4 January 2016, the Deputy Secretary, Planning Services, of the NSW Department of Planning and Environment invited advice from the Minister for Primary Industries and Minister “in accordance with clause 17B of the Mining SEPP”. In an undated letter, which was sent at least after 12 May 2016, the Minister for Primary Industries responded to the 4 January 2016 letter.
11   On or around 23 March 2016, the Applicant lodged with the Department a document entitled “Bylong Coal Project –EIS Response to Submissions” dated March 2016 prepared by Hansen Bailey, which included Appendices labelled A – N.
12   On or around 19 August 2016, the Applicant lodged with the Department a document entitled “Bylong Coal Project – EIS Supplementary Response to Submissions” dated August 2016 prepared by Hansen Bailey, which included Appendices labelled A – M.
13   On 1 October 2016, the NSW Government published the NSW Climate Change Policy Framework.
14   On 9 November 2016, Australia ratified the Paris Agreement.
15   On or around 9 January 2017, the Minister issued a request to the Planning Assessment Commission (PAC) under s 23D of the EP&A Act for the PAC to review the Project and hold a public hearing.
16   On or around 31 March 2017, the Department released its document entitled “Preliminary Assessment Report” dated March 2017, which included Appendices labelled A – M.
17   On 11 May 2017, the PAC held a public hearing with respect to the Project, for the purposes of the then s 23D EP&A Act.
18   On or around 27 July 2017, the PAC released its document entitled “Review Report” dated 25 July 2017 (PAC Review Report), which included Appendices labelled 1-9.
19   On or around 17 January 2018, the Applicant lodged with the Department a document entitled “Bylong Coal Project – Response to PAC Review Report” dated January 2018 prepared by Hansen Bailey, which included Appendices labelled A – X. [Revised Mine Plan included]
20   On or around 29 May 2018, the Department requested further information from the Applicant, via a letter dated 28 May 2018, in relation to the potential implications of stepping the open cut mine off Tarwyn Park.
21   In response, on or around 12 July 2018, the Applicant lodged with the Department a document entitled “Bylong Coal Project – Supplementary Information” dated July 2018 prepared by Hansen Bailey, which included Appendices labelled A – N.
22   On or around 4 October 2018, the Department released its document entitled “State Significant Development – Final Assessment Report (SSD 6367)” dated October 2018, which included Appendices labelled A – H.
23   Between 8 October 2018 and 14 November 2018, the First Respondent placed the Project on public exhibition and received submissions.
24   During the months of October 2018 and November 2018, the First Respondent held meetings with the Applicant, the public, community groups, local governments and the Second Respondent, and conducted a site inspection.
25   On or around 20 December 2018, the Department released a document entitled “Review of Economic Analysis supporting the Revised Bylong Coal Project” dated 20 December 2018.
26   On or around 13 February 2019, the Department provided additional information to the First Respondent entitled “Bylong Coal Project (SSD 6367) – Request for Additional Information” dated 13 February 2019, which included Appendices labelled A and B. Appendix B being a letter dated 19 December 2018 prepared by Hansen Bailey addressing the Request for Additional Information and annexing a report prepared by Australasian Groundwater and Environmental Consultants.
27   On or around 10 March 2019, the First Respondent released a document entitled “Review of Groundwater Issues Associated with the Proposed Bylong Project” dated 5 March 2019 (Independent Groundwater Review).
28   On or around 12 June 2019, the First Respondent released a document entitled “Bylong Coal Project (SSD 6367) – GML Heritage Advice” dated 12 June 2019 (Independent Heritage Review).
29   During June 2019 the First Respondent accepted written submissions on the Independent Heritage Review.
30   On or around 6 August 2019, the First Respondent met with the Department and Department of Primary Industries Agriculture.
31   On or around 18 September 2019, the First Respondent refused the Development Application, and published a document entitled “Statement of reasons for decision” (Statement of Reasons) dated 18 September 2019.
32   On 13 December 2019, the Applicant filed its Class 4 Application (Summons – Judicial Review) with the Court.

As is clear from the above chronology of events, the assessment process has been lengthy and extensive.

Evidence

KEPCO tendered volumes 1, 2, 3 and 4 of the Evidence Book (Ex A), the IPC’s Statement of Reasons (SOR) (Ex B), and the SOAF (Ex C)).
The BVPA tendered volumes 5 and 6 of the Evidence Book (Ex 1).
The evidence relied on by the parties is expanded below by reference to each of the grounds of review alleged by KEPCO.

Statement of Reasons

As is clear from the SOR, in forming its decision the IPC considered the merits of both (i) the Project, and (ii) a Revised Mine Plan and a set of conditions (Final Proposed Conditions), as put forward by the Department of Planning and Environment in its State Significant Development Final Assessment Report October 2018 (Final Assessment Report) as a potential modification to the Project under s 4.38(1)(a) of the EPA Act (the Recommended Revised Project).
The IPC was under a duty to provide reasons for its decision pursuant to s 4.18(1) of the EPA Act (above in [5]) and reg 100(1)(c) of the EPA Regulation (above in [6]).
The IPC’s SOR is extensive, consisting of 819 paragraphs over 146 pages. All the grounds are largely addressed by reference to the SOR. It is therefore extensively extracted below in [19].
The SOR is divided into eight sections.

Section 1 (“Introduction”) summarises the Project before the IPC including a description of the site and locality.

Section 2 (“Key steps in the consideration of the application”) outlines the key steps taken in consideration of the DA, including assessment by the Department of Planning and Environment (Department) and the PAC before the IPC was established.

Section 3 (“The Commission’s meetings and site inspection”) describes the inspections and meetings held by the IPC, including meetings with the Department and with KEPCO.

Section 4 (“Additional information”) describes additional information received by the IPC in response to its requests for additional information.

Section 5 (“Material considered by the Commission”) lists the material considered by the IPC in its determination, including those items that it was mandatory for the IPC to take into consideration. Section 5 also outlines relevant environmental planning instruments, including pars 102-110 which outlines applicable provisions of the Mining SEPP, and pars 149-155 which describe the IPC’s consideration of “other advice”.

Section 6 (“Commission’s considerations”) describes the IPC’s consideration of, inter alia:

existing, approved and likely preferred uses of land in the vicinity (agriculture, heritage, tourism, and mining), the impact of the Project on those uses, and the incompatibility or comparative benefits of the Project (Sections 6.1.2-6.1.7, pars 193-236) concluding in pars 235-236 that the public benefits of the Project and the Recommended Revised Project have not been proven to outweigh the public costs of the proposed mine or the public benefits of the existing, approved and likely preferred uses in the vicinity;

groundwater (Section 6.2, pars 237-297) concluding in pars 288-297 that the groundwater impacts on the Project site are unacceptable;

surface water (Section 6.3, pars 298-323) concluding in pars 322-323 that the surface water impacts are acceptable and manageable;

agriculture (Section 6.4, pars 324-376) concluding in pars 369-376 that neither the Project nor the Recommended Revised Project is compatible with the land use objectives of protecting agricultural land;

mine rehabilitation (Section 6.5, pars 377-407), concluding in pars 402-407 that neither the Project or the Recommended Revised Project meet objectives relating to the proper management of resources by protecting, conserving and enhancing land;

heritage (Section 6.6, pars 408-488), concluding in pars 479-488 that the heritage impacts of the Project and the Recommended Revised Project would be unacceptable;

Aboriginal heritage impacts (Section 6.7, pars 489-516), concluding in pars 514-516 that there was insufficient evidence for the IPC to form a view on the impacts on Aboriginal heritage;

biodiversity (Section 6.8, pars 517-535), concluding in par 532-535 that the Project and the Recommended Revised Project would result in a net loss of 288 hectares of Biophysical Strategic Agricultural Land (BSAL);

transport and traffic (Section 6.9, pars 536-558), concluding in pars 557-558 that the impacts of the Project and the Recommended Revised Project on traffic could be managed;

air quality (Section 6.10, pars 559-573), concluding in par 573 that the air quality impacts resulting from the Project and the Recommended Revised Project are acceptable;

noise and blasting (Section 6.11, pars 574-608), concluding in pars 606-608 that the noise and blasting impacts resulting from the Project and the Recommended Revised Project are acceptable;

visual impact (Section 6.12, pars 609-625), concluding in pars 624-625 that the visual impacts of the Project and the Recommended Revised Project can be minimised;

subsidence (Section 6.13, pars 626-647), concluding in pars 646-647 that the subsidence impacts resulting from the Project and the Recommended Revised Project are acceptable;

climate change (Section 6.14, pars 648-697), noting in par 687 that it is required under cl 14(2) of the Mining SEPP to consider greenhouse gas (GHG) emissions in its assessment, and concluding in pars 696-697 that (a) no offset measures are proposed by KEPCO; and (b) the IPC accepts that there is no policy guidance on what constitutes an acceptable, unacceptable or substantial amount of GHG emissions, nonetheless concluding that based on the evidence before it, the contribution that the Project and the Recommended Revised Project will make to global GHG emissions needs to be considered by the IPC;

social impacts in the locality (Section 6.15, pars 698-735), concluding in pars 730-735 that the Project and the Recommended Revised Project will fundamentally change the nature of the Bylong Valley and that people may perceive it as having a negative impact on their health and wellbeing;

economic impacts in the locality (Section 6.16, pars 736-784), concluding in pars 779-784 that there is a reasonable level of uncertainty in estimation of the economic benefits of the Project and the Recommended Revised Project, meaning the economic benefits are uncertain; and

public interest (Section 6.17, pars 785-813), concluding in pars 797-813 that the Project and the Recommended Revised Project are inconsistent with the objects in s 1.3 (a) (to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the state’s natural and other resources), (b) (to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment) and (f) (to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage)) of the EPA Act and are therefore not in the public interest.

Section 7 (“How the Commission took community views into account in making decision”) outlines how the IPC considered public submissions and comments received as part of the exhibition of the DA.

Section 8 (“Conclusion: The Commission’s findings and determination”) sets out the IPC’s conclusion in respect of the Project, finally concluding in par 819 that it “determined to refuse consent for the Project” for all the reasons outlined in the SOR.

Particular extracts relevant to various grounds of review are extracted below. It will also be necessary to consider the overall structure as summarised in the immediately preceding paragraph. Relevant extracts provide (figures omitted):

1    INTRODUCTION
…
1.2.2    Revised Mine Plan
12.   Following review of the Project by the former Planning Assessment Commission (PAC) in July 2017 (the PAC Review Report), and a letter from the Department to the Applicant dated 28 May 2018, the Applicant submitted a Bylong Coal Project – Supplementary Information Report (Supplementary Information Report) to the Department in July 2018, which provided details of a Revised Mine Plan.
13.The 28 May 2018 letter stated that the Department “considers that revisions to the proposed mine plan are required to adequately avoid and minimise the potential impacts on the heritage values of Tarwyn Park and surrounding landscape” and that “no open cut mining or overburden emplacement should be permitted on the Tarwyn Park property; and overburden emplacement areas should be redesigned to minimise the visual impacts and maximise the integration of the proposed final landform with the surrounding topography”.
14.   The Revised Mine Plan submitted by the Applicant includes the following changes, and is illustrated in Figure 4:
•   removal of open cut mining and overburden emplacement from the Tarwyn Park landholding, avoiding impacts on the former Upper Bylong Catholic Church and cemetery;
•   reducing the volume of overburden being handled by around 24%;
•   reducing the footprint of the western open cut by 22.5 ha to maintain a wooded ridgeline and retain the existing views from the Tarwyn Park homestead;
•   modifying the north-western overburden emplacement area to incorporate a valley/ drainage line, to minimise visual impacts on Tarwyn Park homestead;
•   reducing the height and slope of the south-western overburden emplacement area to integrate with the existing topography;
•   re-establishing the connection between the Upper Bylong Road and Lee Creek Road at mine closure, subject to consultation and agreement with Mid-Western Regional Council (the MWRC);
•   incorporating macro relief into the conceptual final landform, consistent with existing landscape elements in the Upper Bylong Valley; and
•   removal of the on-site WAF to accommodate the construction workforce.

15.   The Revised Mine Plan would result in approximately 1,047 ha of surface disturbance, compared to the Project's surface disturbance of approximately 1,160 ha.
16.   Further to the Revised Mine Plan, the Department recommended a set of conditions (Final Proposed Conditions) in its Final Assessment Report to amend the Project in line with the Revised Mine Plan and prohibit the construction of the WAF and the open cut mine on the historic Tarwyn Park property (see section 2.5 for a summary of the Final Assessment Report). The Revised Mine Plan and the Final Proposed Conditions are collectively referred to as the Recommended Revised Project.
17.   The Commission notes that despite providing an assessment of the Revised Mine Plan, the Applicant has not formally amended its development application (see paragraph 54). The Commission has therefore assessed the Project on the basis that approval is being sought for the Project as originally proposed in the EIS submitted with the development application, as described in paragraph 11.
18. The Commission has also considered the merits of the Recommended Revised Project, as put forward by the Department in its Final Assessment Report, as a potential modification to the Project under section 4.38(1)(a) of the EP&A Act.
…
5   MATERIAL CONSIDERED BY THE COMMISSION
5.1   Material before the Commission
78.   In this determination, the Commission has carefully considered the following material (the Material):
•   the Independent Expert Scientific Committee (IESC) advice (IESC advice) dated 14 March 2014
•   the report by the Mining & Petroleum Gateway Panel to accompany a Conditional Gateway Certificate for the Bylong Coal Project (the Gateway Report) dated 15 April 2014;
•   the development application, including the Revised Secretary’s Environmental Assessment Requirements, dated 11 November 2014;
•   the Bylong Coal Project Environmental Impact Statement (the EIS), dated September 2015 and prepared by Hansen Baily Environmental Consultants, and its accompanying appendices;
•   the Department’s request to Minister for Lands and Water for advice, dated 4 January 2016;
•   the Minister for Lands and Water advice to the Department, dated January 2016;
•   the Bylong Coal Project: Environmental Impact Statement Response to Submissions (the RtS), dated March 2016, and its accompanying appendices;
•   the Mining & Petroleum Gateway Panel’s response to the Department, dated 9 September 2016;
•   the Department’s State Significant Development Assessment Bylong Coal Project (SSD-6367), dated 31 March 2017;
•   the PAC’s Bylong Coal Project SSD6367 Review Report, dated 25 July 2017, including Appendices;
•   the Bylong Coal Project Response to PAC Review Report (the Applicant’s Review response), dated January 2018, and its accompanying appendices;
•   the Applicant’s Revised Mine Plan detailed in the report Bylong Coal Project, Supplementary Information, July 2018;
•   the Department’s Final Assessment Report dated October 2018;
•   the Microsoft Surface Pro tablet (the tablet) containing information and visual rendering regarding the Project and the Revised Mine Plan, dated 1 November 2018;
•   information discussed with the Commission at its meeting with MWRC on 6 November 2018 and provided in the transcript published on the Commission’s website;
•   information discussed with the Commission at its meeting with Muswellbrook Shire Council on 12 November 2018 and provided in the transcript published on the Commission’s website;
•   information discussed with the Commission at its meeting with the Department on 29 October 2018 and provided in the transcript published on the Commission’s website;
•   information discussed with the Commission at its meeting with the Applicant on 29 October 2018 and provided in the transcript published on the Commission’s website;
•   information discussed with the Commission at its meeting with the BVPA on 12 November 2018 and provided in the transcript published on the Commission’s website;
•   oral submissions made by the 58 speakers at the public meeting and the 3192 written comments received subsequently;
•   the Independent Groundwater Review prepared by GW-SW Pty Ltd, dated 5 March 2019;
•   the Independent Economic Review prepared by CIE dated 20 December 2018;
•   additional information provided by the Applicant including:
○   Bylong Coal Project Response to Submissions on the Greater Blue Mountains World Area, dated 10 December 2018;
○   Bylong Coal Project Response to Glencore Submission dated 12 November 2018, dated 14 December 2018;
○   Bylong Coal Project Response to Submissions in Relation to Economic Impact Assessments, dated 18 December 2018;
○   Bylong Coal Project Clarification over Meeting Transcript in Relation to Mine Plan Sought (SSD 14_6367), dated 19 December 2018;
○   Bylong Coal Project Response to Submissions in Relation to Water Resources, dated 20 December 2018; and
○   Bylong Coal Project Relevant Information for the IPC’s Consideration in Relation to Greenhouse Gas Emissions, dated 4 March 2019;
○   Applicant’s response to the EDO NSW Submission, dated 15 February 2019;
○   the Department’s Bylong Coal Project (SSD 6367) – Request for Additional Information, dated 13 February 2019, and its accompanying appendices (the Department’s Groundwater Response);
○   Bylong Coal Project Response to GML Heritage Advice, dated 27 June 2019;
○   response to the Commission correspondence, dated 5 July 2019;
○   comments on the Gateway Certificate, dated 23 July 2019;
○   further comments on the Gateway Certificate, dated 5 August 2019;
○   further comments on the Gateway Certificate, dated 13 August 2019; and
○   comments on the Commission’s meeting with the Department and DPI on 6 August 2019, dated 23 August 2019;

•   the independent Heritage Review prepared by GML Heritage, dated 12 June 2019;
•   written comments received following the publication of the Heritage Review on the Commission’s website.
•   written comments received following the publication of the Commission’s media statement relating to the expiry of the gateway certificate;
•   written comments received following the publication of the Applicant’s comments on the gateway certificate; and
•   information discussed with the Commission at its meeting with the Department and DPI on 6 August 2019 and provided in the transcript published on the Commission’s website.

…
5.2   Mandatory considerations
…
5.2.2   Relevant Environmental Planning Instruments
84.   The EIPs that may apply to the Project and the Recommended Revised Project are:
•   Mid-Western Regional Local Environment Plan 2012 (MWR LEP 2012);
•   SEPP No. 33 – Hazardous and Offensive Development (SEPP 33);
•   SEPP No. 44 – Koala Habitat Protection (SEPP 44);
•   SEPP No. 55 – Remediation of Land (SEPP 55);
•   SEPP State and Regional Development 2011 (SEPP SRD);
•   SEPP (Infrastructure) 2007 (Infrastructure SEPP); and
•   Mining SEPP.

…
Mining SEPP
102. The relevant aims of the Mining SEPP as stated in clause 2 are:
“The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries:
(a) to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and
(b) to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and
(b1) to promote the development of significant mineral resources, and
(c) to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources…”

103.   Part 3 of the Mining SEPP lists a number of matters that a consent authority must consider before determining an application for development for the purposes of mining, including:
•   non-discretionary development standards for mining (i.e. noise, air quality, blasting and aquifer interference);
•   compatibility of development with other land uses;
• the Voluntary Land Acquisition and Mitigation Policy approved by the Minister and published in the Gazette on the date on which State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Air and Noise Impacts) 2018 is published on the NSW legislation website (103);
•   compatibility of development with mining, petroleum production or extractive industries;
•   natural resource management and environmental management;
•   resource recovery;
•   transport; and
•   rehabilitation.

104. Clause 12AB of the Mining SEPP identifies various non-discretionary development standards for mining for the purposes of s 4.15(2) and (3) of the EPA Act (see clause 12AB(2) of Mining SEPP). The object of the clause is stated in cl 12AB(1) of the Mining SEPP:
“The object of this clause is to identify development standards on particular matters relating ) to mining that, if complied with, prevents the consent authority from requiring more onerous standards for those matters (but that does not prevent the consent authority granting consent even though any such standard is not complied with).”

105. The relevant non-discretionary standards are considered by the Commission in Section 6.
106. In relation to GHG emissions, Clause 14 of the Mining SEPP states that:
“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.”

107.   The Commission notes that the term “downstream emissions” is not defined in the Mining SEPP. The Commission understands the term to denote the greenhouse gas emissions relating to sold goods and services and thus caused by the end users’ use of the product. (Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 per Sheahan J at [126]).
108.   Division 2 of Part 4AA of the Mining SEPP also requires the Commission to have regard to the minimal impact considerations set out in the NSW Aquifer Interference Policy 2012 (AIP) and the other provisions of the AIP. The Commission has therefore considered the provisions of the AIP in Section 6.2.
109.   Clause 12 of the Mining SEPP requires the consent authority, before determining a development application for mining, to consider the compatibility of the proposed mine with other land uses in the vicinity of the mine. Clause 12 provides:
“Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must:
(a) consider:
(i) the existing uses and approved uses of land in the vicinity of the development, and
(ii) whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and
(iii) any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and

(b) evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a) (i) and (ii), and
(c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii).”

110. The Commission has considered the existing, approved and likely preferred uses of land in the vicinity of the Project and Recommended Revised Project with respect to Clause 12 of the Mining SEPP in Section 6.
…
Other advice
149. In accordance with clause 17B(1)(b)(ii) of the Mining SEPP, the Commission has considered the written advice provided by the Minister for Regional Water (MRW) dated January 2016.
150. Clause 17B(1)(b)(ii) of the Mining SEPP, requires the consent authority to consider any written advice provided by the MRW in response to a referral. On 4 January 2016, the Department wrote to the Minister for Lands and Water (now known as the MRW) seeking advice on the impact of the Project on water resources. The Minister for Lands and Water provided a response to the Department in January 2016.

151. In relation to water licensing, the Minister for Lands and Water stated that the Proponent has identified sufficient entitlement to account for the predicted take and use of water from alluvial groundwater source. The MRW noted that the proponent had applied for a licence under part 5 of the Water Act 1912 and that the application was under assessment.
152.In relation to water table impacts, the Minister for Lands and Water stated that the “DPI Water advises that the modelling and assessment of groundwater impacts should be improved to better understand the impacts and proposed management of the project”.
…
5.3   Other relevant documents
5.3.1   Commonwealth Approvals
…
5.3.4   Relevant Guidelines
188.   In determining this Application, the Commission has also considered the:
•   Noise Policy for Industry (NPI) dated 2017;
•   NSW Climate Change Policy Framework dated November 2016;
•   NSW Aquifer Interference Policy 2012 (AIP)
•   VLAMP dated September 2018;
•   Social Impact Assessment Guidelines dated September 2017; and
•   2013 Interim protocol for site verification and mapping of biophysical strategic agricultural land (the Interim BSAL Protocol)

…
6   COMMISSION’S CONSIDERATIONS
6.1   Existing, approved and likely preferred uses of land in the vicinity
189.   As presented in paragraph 104, under the Mining SEPP the Commission must give consideration to the existing uses and approved uses of land in the vicinity of the development, including whether or not it is likely to have a significant impact on the uses that are likely to be the preferred uses of land in the vicinity of the development and any ways in which the development may be incompatible with any of those uses.
…
6.1.2   Existing uses
193.   Clause 12(a) of the Mining SEPP set out in paragraph 104 above requires consideration of three types of uses of land in the vicinity of the Project: existing uses, approved uses and likely preferred uses.
…
6.1.4   Likely preferred uses
206.   The Commission has adopted Preston CJ’s guidance on likely preferred uses in Gloucester Resources v Minister as referring to uses of the land that, having regard to land use trends, are likely to be the preferred uses of land in the vicinity.
207.   The Commission considers that the MWLEP 2012 is a relevant representation of what land uses are most likely to be considered the preferred uses of land in the vicinity of the Project.
…
Agriculture
…
Heritage
…
Tourism
…
Mining
223   As per paragraph 87, the Commission notes that development for the purposes of open cut mining is permissible with consent on land zoned RU1. The Commission also notes that “underground mining” is not listed as a permissible or prohibited use in the MWLEP on land zoned RU1 and SP2. The Commission notes that under clause 7(1)(b)(i) of the Mining SEPP, development for the purposes of miming may be carried out on any land where agriculture or industry is a permissible land use, which includes land zoned SP2.
224.   The Preliminary Assessment Report states the while [sic] the Project is located within the Western Coalfield, there is no history of coal mining in the Bylong Valley. The nearest coal mine is Wilpinjong Mine located 20km northwest of the Project Site.
225.   Mining would be a new land use in a predominately agricultural setting, surrounded by State Forests and National Parks. The Preliminary Assessment Report stated that “[e]xpansion of the mining industry into the Bylong Valley area has the potential to create land use conflicts with existing agricultural industries, including cattle grazing operations”.
226.   The PAC considered that the impact of this new use would be felt across the local economy of the Bylong Valley”
“…the conclusion that might be reached is that any approval of the project would represent a fundamental shift in the valley in favour of mining as opposed to agricultural or pastoral pursuits, and that the water security on which agricultural activities depend, may be jeopardised, particularly during extended dry period.”

Commission’s consideration of likely preferred uses
227.   The Commission acknowledges that open cut mining on the Project Site is permissible with consent, as stated in paragraphs 87 and 89. On balance, the Commission finds that agricultural and some tourism land uses are the likely preferred uses in the vicinity, having regard to:
•   the objectives of zoning in the MWLEP being primarily agricultural, as well as the maintenance of heritage and promotion of tourism (paragraph 207);
•   the minimum lot sizes being suited to intensive agricultural use (paragraph 209);
•   the prevalence of BSAL in the vicinity and on the Project Site to support agricultural activities given that BSAL is a finite natural resource and with BSAL being the most fertile 3.5% of soils in NSW as there are comparatively few locations that have access to all the relevant characteristics (see paragraph 372);
•   the prevalence of historical items and landscapes with heritage significance in the vicinity (paragraph 217); and
•   the nearest coal mine being 20 km away (paragraph 224).

228.   The Commission considers that these likely preferred uses of the land are also compatible with a further objective of the RU1 zoning to preserve the local heritage and rural landscape (see paragraph 207).
6.1.5    Impact of the proposed mine on the likely preferred uses
229.   As stated in paragraph 109, under Clause 12 of the Mining SEPP, the Commission must consider whether the Project or Recommended Revised Project is likely to have a significant impact on the likely preferred uses in the vicinity.
230.   The Commission has considered the impacts further in this section of the Statement of Reasons including evaluating any measures proposed by the Applicant to avoid or minimise any incompatibility.
6.1.6    The incompatibility with the existing, approved or likely preferred uses
231.   As stated in paragraph 109, under Clause 12(a)(iii) of the Mining SEPP the Commission must consider any ways in which the Project or Recommended Revised Project may be incompatible with any of the existing, approved or likely preferred uses. Where there is incompatibility, under subclause 12(c) of the Mining SEPP the Commission must evaluate any measures proposed by the Applicant to avoid or minimise incompatibility.
232.   The Commission considers the impacts of the Project and Recommended Revised Project in this Statement of Reasons in Section 6 and finds that, by reason of its groundwater and agricultural impacts, and the lack of evidence to support the rehabilitation to BSAL equivalent, mining will be incompatible with the existing, approved and likely preferred uses in the vicinity and that the measures proposed by the Department and the Applicant will not avoid or minimise this incompatibility.
6.1.7    The comparative public benefits of the mine and other land uses
233.   As stated in paragraph 109, under Subclause 12(b) of the Mining SEPP the Commission must evaluate and compare the respective public benefits of the Project and the existing, approved and likely preferred uses of land in the vicinity.
234.   The Commission has considered the public benefits of the Project and finds them to be employment for up to 470 mine workers at full production, with 275 persons employed during underground only operations and $290 million (net present value) in royalties for the NSW Government.
235.   The Commission has considered the public benefits of the Recommended Revised Project and finds them to be 805 direct and indirect jobs, $278 million (net present value) in royalties for the NSW Government and contribution of funding for local infrastructure. The Commission finds the negative impacts of the Recommended Revised Project to be the likelihood that rehabilitated land will not be at the standard of BSAL-equivalent resulting in a permanent loss of BSAL in the Bylong Valley, longterm impacts on groundwater, contribution towards climate change through GHG emissions, impacts on intergenerational equity and adverse heritage impacts and adverse visual impacts on the Bylong Valley landscape.
236.   The Commission makes findings about the public benefits of the mine and other land uses in section 6.17.5. For the reasons given in this section, the Commission finds that the public benefits of the Project and the Recommended Revised Project have not been proven to outweigh either the public costs of the proposed mine or the public benefits of the existing, approved and likely preferred uses in the vicinity if those uses were left unaffected by the proposed mine.
…
6.2   Natural environment impacts – groundwater
6.2.1   Statutory context
237.   Part 3 cl 14(a) of the Mining SEPP requires the consent authority to consider whether impacts on significant water resources, including groundwater resources, have been avoided, or are minimised to the greatest extent practicable.
238.   Division 2 of Part 4AA of the Mining SEPP requires the consent authority to:
•   “consider any written advice provided by the Minister for Regional Water; and
•   have regard to the minimal impact considerations set out in the NSE Aquifer interference Policy 2012 (AIP) and the other provisions of the AIP”.

239.   Clause 12AB(7) of the Mining SEPP requires that “[a]ny interference with an aquifer caused by the development does not exceed the respective water table, water pressure and water quality requirements specified for item 1 in columns 2, 3 and 4 of ‘Table 1 of the Aquifer Interference Policy for each relevant water source listed in column 1 of that Table.” And that “[t]he taking of water from all water sources must be authorised by way of licenses or exemptions under the relevant water legislation.”
240.   Section 4.15 of the EP&A requires the consent authority to consider “the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.
…
6.2.12   Commission’s consideration of the groundwater impacts of the Project and Recommended Revised Project
288.   The Commission accepts the findings of the Applicant and Independent Groundwater Review in paragraphs 251, 275 and 287 that there would be no cumulative impact on groundwater in relation to nearby mines as there is no overlap in zone of influence.
289.   The Commission accepts the robustness of the modelled groundwater impacts presented in the Applicant’s Bylong Coal Project Mine Plan Update Groundwater Impact Assessment as referenced in paragraph 261.
290.   The Commission accepts the findings of the Applicant and Independent Groundwater Review in paragraphs 251 and 286 that the groundwater system will reach a new equilibrium within 100-150 years.
291.   The Commissions [sic] agrees with the conclusions of the Applicant and the Department in paragraphs 265 and 269 that the projected aquifer drawdown will not exceed 2m on neighbouring properties not owned or operated by the Applicant. The Commissions [sic] finds that the Project and the Recommended Revised Project meet the requirements of the AIP in relation to the groundwater impacts on land that is not owned or operated by the Applicant.
292.   The Commission accepts the statements of the Applicant and Department in paragraphs 265 and 270 that the drawdown of the aquifer on land owned and operated by the Applicant is projected to be greater than 2m which exceeds the maximum drawdown thresholds in the AIP set out in paragraph 238. The Commission notes that the Applicant’s modelling as stated in paragraph 263 predicts a drawdown of between 2 and 10m in the aquifer along the Bylong River and Lee Creek for the Project. The Commission notes that the drawdown is predicted to be marginally less (between 0.1m and 0.2m) for the Recommended Revised Project. The Commission is of the view that this is a significant decline in the water table in comparison to Table 1 “The Minimal Impact Considerations for Aquifer Interference Activities” which sets out the AIP’s maximum drawdown threshold of a 2m decline.
293.   The Commission accepts the Department’s conclusion that the Recommended Revised Project has slightly reduced the impacts on groundwater as stated in paragraph 274.
294.   The Commission notes the Department’s conclusion in paragraph 272, that the Applicant has designed the Project to avoid significant groundwater impacts. The Commission does not support this conclusion for the reasons set out in paragraph 295, 296 and 297. The Commission accepts the Department’s conclusion in paragraph 272, that the Applicant holds sufficient water licenses to account for its predicted water take in the alluvium and that the Applicant has not acquired all its entitlement in the Permian aquifer.
295.The Commission notes the Department’s conclusion in paragraph 272 that the Applicant’s management of the groundwater impacts of the Recommended Revised Project was acceptable because the predicted impacts on water users would comply with Table 1- Minimal Impact Considerations for Aquifer Interference Activities set out in the AIP. The Commission is of the view that this only applies to land not owned by the Applicant. As set out in paragraph 292, the drawdown of the aquifer on land owned and operated by the Applicant is projected to be greater than 2m (up to 9m along Dry Creek), exceeding the maximum drawdown thresholds in the AlP. The Commission finds that under Clause 12AB(7) of the Mining SEPP, this is an interference with an aquifer caused by the proposed development that does exceed the respective water table threshold under the AIP as both considerations 1 and 2 in the AlP refer to a “2m decline cumulatively”.
296.   The Commission notes that there is a breach of the AlP’s maximum drawdown as stated in paragraph 292 and therefore the AIP “make good” provisions apply as set out in paragraph 244. The Commission notes that the AIP does not define or identify what “make good provisions” are. The Commission acknowledges that the AIP states that “surrendering of water access licences is a ‘make good’ provision which may account for ongoing post closure take of water, provided water management costs and the net present value of any charges associated with this ongoing take of water and the surrendered licences are met (p30). The Commission notes that there has been no information provided by the Applicant in relation to proposed “make good” measures. The Commission finds that there is uncertainty and insufficient information before it as to whether the “make good” requirements of the Project and Recommended Revised Project are met given the exceedance in the respective water table.
297.   The Commission finds that the groundwater impacts on the Project Site are unacceptable for the reasons set out below:
•   aquifer recharge events are infrequent leading to long term declines in groundwater levels over prolonged dry periods, as stated in paragraph 249;
•   the groundwater system will reach a new equilibrium within 100-150 years as stated in paragraph 290. The Commission is of the view that this will have long term intergenerational consequences;
•   drawdown at the Project Site exceeds the AIP thresholds (i.e. 2m). The Commission notes that one area along Dry Creek will have a maximum impact of up to 9m as stated in paragraph 292.
•   there is uncertainty and insufficient information before it as to whether the “make good” requirements of the Project and Recommended Revised Project are met as stated in paragraph 296; and
•   the predicted water seepage into the mine at cessation of mining is significant, as stated in paragraph 251 and the length of time over which the aquifer will recover is beyond the commercial life of the mine and there will be continued groundwater impacts at the cessation of mining, as stated in paragraph 251 and 286.

6.3   Natural environment impacts – surface water
…
6.14   Natural environment impacts – climate change
6.14.1   Statutory context
648.   Part 4.15 of the EP&A Act requires the Commission to consider the likely environmental impacts of the development on the natural environment.
649.   The following sections of the EP&A Act require the Commission to consider GHG emissions in assessing the Project:
• s 4.15(1)(a), which requires the Commission to take into consideration the provisions of any applicable environmental planning instrument including the Mining SEPP (which in tum requires the consideration of GHG emissions as explained below).
• s 4.15(1)(b), which requires the Commission to take into consideration the likely impacts of the development, including environmental impacts which the Commission considers includes impacts of GHG emissions on climate change); and
• s 4.15(1)(e), which requires the Commission to take into consideration public interest, including the principles of ecologically sustainable development (ESD).

650. Section 6(2) of the Protection of the Environment Administration Act 1991, as set out in paragraph 82, states that ESD:
“…requires the effective integration of social, economic and environmental considerations in decision-making processes. [ESDJ can be achieved through the implementation of the following principles and programs:
(a) the precautionary principle-namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options,
(b) inter-generational equity–namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations;
(c) conservation of biological diversity and ecological integrity; and
(d) improved valuation, pricing and incentive mechanisms.”

651. Clause 1.2(2)(b), (c) and (d) of the MWRLEP 2012 states that the particular aims of the plan include:
“(b) to encourage the proper management, development and conservation of resources within Mid-Western Regional by protecting, enhancing and conserving:
(i) land of significance to agricultural production, and
(ii) soil, water, minerals and other natural resources, and
(iii) native plants and animals, and
(iv) places and buildings of heritage significance, and
(v) scenic values,

(c) to provide a secure future for agriculture through the protection of agricultural land capability and by maximising opportunities for sustainable rural and primary production pursuits,
(d) to foster a sustainable and vibrant economy that supports and celebrates the MidWestern Regional’s rural, natural and heritage attributes”

652. Clause 14 of the Mining SEPP relevantly provides:
“(2) in determining a development application …. 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.”

653. 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:
(c) that greenhouse gas emissions are minimised to the greatest extent practicable.

6.14.2 Applicable policies
654. The Commission must consider an assessment of the GHG emissions of both the Project and the Recommended Revised Project, having regard to applicable State or national policies, programs or guidelines concerning GHG emissions, by reason of the application of the Mining SEPP, in accordance with section 4.15(1)(a) of the EP&A Act.

The BVPA’s evidence

Aboriginal heritage impacts

The BVPA relied on several documents which were submissions before the IPC addressing the inadequacy of the assessment of Aboriginal heritage impacts, namely:

the transcript of an IPC public meeting held on 7 November 2018;

a written submission prepared by Hilary Crawford, a Rylstone resident, dated 12 November 2018;

a written submission prepared by the Lock the Gate Alliance, dated 13 November 2018;

a written submission prepared by the BVPA, dated 14 November 2018; and

an Expert Review of Aboriginal Cultural Heritage Assessment prepared by Peter Kuskie of South East Archaeology, dated 14 November 2018.

Alternative sources of coal

The BVPA took the Court to the Expert Review prepared by the Institute for Energy Economics and Financial Analysis (IEEFA), dated June 2018, which provides as follows (p 2):

The clear change in direction on energy policy by the South Korean government significantly impacts the long-term economic viability of the Bylong Coal Project in terms of the amount of coal that can be placed into the market and for how long.
…
KEPCO’s letter of support for the project fails to consider the significant change in the long-term outlook for coal demand in South Korea that has taken place since the election of a new government in 2017.

The Bylong Coal Project Supplementary Information prepared by Hansen Bailey, dated July 2018, was prepared in response to the IEEFA Expert Review.
A further Reply to KEPCO’s Response to IEEFA was prepared by IEEFA, dated November 2018. Also prepared by IEEFA was a document titled Briefing Note: South Korea Shifting Further Away from Coal, dated April 2019.
The question of coal demand was also addressed in various submissions, including a written submission prepared by The Australia Institute, dated November 2018.
A transcript of an IPC meeting held with the BVPA on 12 November 2018 records a series of contentions to the effect that global coal demand and South Korean reliance on coal are reducing.
The Steffen Report also deals with the question of alternative coal sources including in pars 60-61 his observation that the argument that if the Project is not allowed to proceed another coal source will be used in its place is fundamentally flawed.
The Hansen Bailey March 2019 letter addresses the question of demand for coal and maintains KEPCO’s contention that coal will be sourced elsewhere.
Further submissions and correspondence addressing this topic included a letter from the Environmental Defender’s Office (EDO) acting for the BVPA dated 8 March 2019, a letter from Hansen Bailey to the IPC on “response to EDO NSW submission dated 15 February 2019”, addressing the decision in Rocky Hill, dated 8 March 2019, and a letter from Hansen Bailey to the IPC on “response to IPC correspondence dated 27 June 2019”, addressing various public submissions, dated 5 July 2019.

Lack of certainty as to “make good” provisions

The BVPA relied on a written submission prepared by the Lock the Gate Alliance that was before the IPC, dated 6 November 2015 and a later submission dated 13 November 2018 which addressed the question of how the AIP applies.
The BVPA took the Court to a letter from Hansen Bailey to the IPC providing its “response to submissions in relation to water resources”, dated 20 December 2018.
Also referred to was a letter from Chalk & Behrendt acting for the “Lock the Gate Alliance” to the IPC addressing the proper interpretation of cl 12AB of the Mining SEPP regarding the AIP, dated 13 February 2019.

Nature of proposed greenhouse gas mitigation measures

The BVPA took the Court to evidence already relied on by KEPCO, namely the GHG Impact Assessment (see [175] above) and proposed Condition 19(d) (see [176] above).
Other relevant documents addressing the need for closer scrutiny to Scope 3 emissions included the letter from Chalk & Behrendt described in [191] above and the transcript of an IPC meeting held with the BVPA on 12 November 2018 described in [185] above.
The BVPA also relied on a submission prepared by Doctors for the Environment that was before the IPC, dated November 2018, and other submissions calling for closer scrutiny to be given to Scope 3 emissions.

KEPCO’s submissions

The errors asserted in Grounds 8 and 9 are that the IPC reached conclusions adverse to KEPCO in circumstances where that was unexpected, and the IPC should have disclosed to KEPCO the matters so that it could have addressed further submissions on the topics. Ground 8 is based on a number of well-established legal principles:

As an incident of the duty to accord procedural fairness, a decision-maker “is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material”: Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), 592, referred to with approval in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [22] (Ex parte Palme) (Gleeson CJ, Gummow and Heydon JJ).

The duties imposed by s 4.15(1) of the EPA Act (including, for example, the duty to consider the likely impacts of the development) carry with them a duty on the consent authority “to acquaint itself with such material as will permit it to consider” those of the matters which are in fact material: Parramatta City Council v Hale (1982) 47 LGERA 319 (Hale) at 340 (Moffitt P).

Consistently with the presumption that Parliament intends powers to be exercised in a legally rational or reasonable way (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [24], [29], [63], and [88]-[90]), the consent authority must not act in a way that is legally unreasonable. Among the ways in which a finding will be shown to be legally unreasonable is if there is “only one conclusion open on the evidence” and some other conclusion is reached, or if “there is no logical connection between the evidence and the inferences drawn”: Fattah v Minister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31 (Fattah) at [45] (Perram, Farrell and Thawley JJ).

A decision-maker will constructively fail to exercise jurisdiction and commit jurisdictional error if the decision-maker fails to take account of cogent evidence providing substantial support to a person’s case: SZMTA at [13] (Bell, Gageler and Keane JJ); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at [103]-[115] (Robertson J). This is supplemented by a consent authority’s duty to “evaluate the development application (including any accompanying documents)”: Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343 at [39] (Preston CJ of LEC) (Beazley P agreeing at [1]; Ward JA agreeing at [2]).

The IPC’s conclusions and reasoning violated each of these principles.
In respect of three topics – Aboriginal heritage impacts, alternative sources of coal and proposed aquifer “make good” measures – the IPC concluded that it had insufficient evidence before it to form a view either way. In particular:

in respect of Aboriginal heritage impacts, the IPC found that there was “insufficient evidence for [it] to form a view on the impacts on Aboriginal heritage”: SOR par 516; see also SOR pars 811, 817. This is despite evidence that Aboriginal heritage had been addressed to the OEH’s satisfaction, see [168]-[169] above;

in respect of alternative sources of coal, the IPC found that it did “not have evidence before it to determine whether, if the Project or Recommended Revised Project is not approved, the Applicant will need to secure an alternative source of coal and that this coal may be of an inferior quality”: SOR par 694. This was an aspect of the IPC’s reasoning which ultimately concluded in the seventh bullet point in par 817. This is despite evidence that it was the Department’s position that refusing the Project would not reduce global GHG emissions as the gap in coal supply would be filled by another coal resource (see [170] above), and despite material before the IPC that coal demand in South Korea is ongoing (see [171] above).

in respect of “make good” measures for aquifer interference, the IPC found that there was “uncertainty and insufficient information before it as to whether the ‘make good’ requirements of the Project and Recommended Revised Project are met given the exceedance in the respective water table”: SOR par 296; see also pars 297, 817. Notably, this was a matter relied on by the IPC in its conclusion in par 817. This is despite evidence that 100 years post-mining there would be no adverse impacts on groundwater (see [172]-[174] above).

Further, the IPC was apparently uncertain as to the scope of KEPCO’s proposed GHG mitigation measures. In par 696 of the SOR, the IPC referred to KEPCO’s GHG Management Plan and observed that the measures in it “appear to relate only to Scope 1 and 2 GHG emissions”. This was part of the IPC’s reasoning to the conclusion that Scope 3 emissions had not been minimised which, in turn, was one of the overall reasons for refusing consent: SOR par 817. This is despite evidence that Scope 3 emissions were addressed in KEPCO’s GHG Impact Assessment (see [175] above) and that Condition 19(d) of the Department’s Final Proposed Conditions (see [176] above) imposed a requirement to minimise the release of GHG emissions.
KEPCO further submitted in relation to alternative sources of coal that the IPC’s observation in par 694 of the SOR that it did not have evidence before it to determine whether, if consent was granted, KEPCO would need to secure an alternative source of coal could not have been made if the IPC had actively intellectually engaged with the material before it. The material before it was plainly evidence enabling the IPC to determine that KEPCO would need to secure an alternative source of coal which was likely to be of lower quality. If the IPC did consider that material, its conclusion was not legally open. On the evidence available, the only available conclusion was that there was evidence upon which the IPC could reach a determination (whether or not that determination was one favourable to KEPCO). The IPC reached an irrational conclusion that was not supported by evidence and was manifestly wrong in fact, explicable only by a failure to consider cogent evidence before it and a legally unreasonable failure to understand that evidence.
Mr Bailey’s affidavit (summarised in [177]-[179] above) identifies that if he had been told about these issues he would have taken certain actions.

The BVPA’s submissions

These grounds are essentially raising merit arguments in the guise of judicial review grounds. The principles articulated by KEPCO are made in particular statutory contexts and their application must be considered with caution for that reason. Alphaone approved in the High Court in the unanimous decision of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [32] is cited in relation to procedural fairness that a party must be given the opportunity to address on critical issues that are not apparent from the natural terms of the statute under which the decision is being made. Each of the matters complained of in Grounds 8 and 9 concern an issue that was clearly identified as critical in the assessment process and which KEPCO was well aware was critical. The IPC reached a conclusion that was open on the material before it.
Other principles of administrative law must also be considered, namely that procedural fairness does not require a decision-maker to identify its thought processes or its preliminary conclusions to an applicant for comment: Alphaone at 591-592, Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40 FCR 332 (Powerlift) at 365-366; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000] FCA 1113 (Pilbara ALCAC) at [63]-[73]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 (S154) at [54], [57]-[58].
Hale, relied on by KEPCO in [195(b)] above, was a very different case where the local council issued development consent without being aware of a number of significant issues of traffic, parking and access. In that context, the CA held the council had an obligation to acquaint itself with matters sufficiently to be able to undertake its statutory obligation to consider relevant impacts. The facts of this case are different in that there was information before the IPC about each of the topics relied on in these grounds. Much of that material was voluminous. The principles in Hale did not require it to reach certainty in respect of all the matters it considered. There is no general administrative law principle that a consent authority is obliged to acquaint itself with such materials as will enable it to determine a matter. Weal also had quite different circumstances of a grant of development consent with a deferred commencement condition for a crucial impact of noise. The fact that an insufficiency of evidence or area of uncertainty arose in relation to a matter which KEPCO knew of did not impose a duty to enquire on the IPC and did not make it inappropriate to proceed to make a final determination to refuse consent. That the IPC was uncertain about particular impacts must be understood in the context of its whole reasoning.
KEPCO’s argument that because it thought it had an agreed approach with the OEH on Aboriginal heritage issues, and the Department on other topics, and so it was a surprise when the IPC took a different view, gives rise to no obligation on the IPC’s part. The IPC is not bound by the Department or the OEH. It is an independent decision-maker. There were strong dissenting voices on all the issues identified in these grounds with submissions that the IPC should not be satisfied, even if the Department was.
In Walsh v Parramatta City Council at [60] Preston CJ observed:

The level of particularity with which a matter is identified in the statute may be significant where the failure complained of is not a failure to consider a certain subject matter, but a failure to make some enquiry about facts said to be relevant to that subject matter. For the applicant to succeed, the statute must expressly or impliedly oblige the decision maker to enquire and consider the subject matter at the level of particularity involved in the applicant’s submission: Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [23].

Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160; [2015] NSWLEC 61 at [87] also applies in this context. There were issues in play with competing contentions before the IPC. It was on notice about how to deal with those issues, as is clear from the evidence summarised in [180]-[194] above and expanded on in submissions from [207]-[225] below. What Mr Bailey did not say in his affidavit is that he was not aware these were issues of controversy before the IPC. It is not a failure to accord procedural fairness for a person unsatisfied with the ultimate conclusion to say that if he or she had known the outcome they would have taken a different approach.

Aboriginal heritage impacts

From the start of the assessment process the Secretary’s Environmental Assessment Requirements (SEARs) issued by the Department required an assessment of the likely impacts of the Project on Aboriginal heritage. KEPCO accordingly prepared an assessment of those impacts. The PAC Review Report identified some concerns with KEPCO’s approach and the need for further investigations to occur. This was also recorded in correspondence with the OEH. The decision to undertake further assessment of Aboriginal heritage impacts after consent was granted may have been satisfactory to the OEH but was the subject of dissent in several public comments, including submissions of the BVPA and an assessment prepared by archaeologist Mr Kuskie (listed above in [180(b)]-[180(d)). Concerns included that an adequate investigation had not been undertaken and the cumulative impacts of both the Project and the Recommended Revised Project on Wirajduri heritage had not been addressed.
It was right for the IPC to conclude that there was insufficient evidence for it to form a view on the impacts of the Project on Aboriginal heritage as there had been no advance in terms of understanding what the impacts actually were following the concerns raised by the PAC. This could have been no surprise to KEPCO as the lack of adequate evidence was precisely what the public submissions were drawing attention to.
The IPC discharged its duty to acquaint itself with material relevant to the exercise of its function. It was logical for the IPC to reason that it could refuse consent without reaching a final view about the precise nature of the heritage impacts, given they could at best only be seen as a neutral matter, not a matter that favoured the granting of consent. It did not draw any adverse conclusion about Aboriginal heritage impacts. It is absurd to suggest that the IPC, having reached that view on the facts, was nevertheless obliged to undertake some further factual inquiry in order to give procedural fairness to KEPCO. A situation of refusal does not give rise to the same kind of considerations in Hale and Weal where consent was granted without an understanding of the impacts.

Alternative sources of coal

The IPC was under no obligation to reach any more definitive conclusion about the likelihood of KEPCO obtaining alternative sources of coal if consent were refused. The IPC was aware that KEPCO had asserted that Scope 3 GHG emissions would be emitted irrespective of the approval because if the Project was refused it would find alternative sources of coal. KEPCO’s suggestion that it would use alternative sources of coal was challenged and dealt with by material before the IPC (see [181]-[188] above). KEPCO was plainly alive to the fact that this was a matter in dispute. The IPC’s comment that it “does not have evidence before it to determine whether… the Applicant will need to secure an alternative source of coal” was not intended to indicate that it had no evidence at all before it on the topic. It was clearly aware of KEPCO’s contentions on the point. The statement reflects that the IPC did not consider it was in a position to reach a satisfactory conclusion about whether that eventuality would in fact arise.
The material before the IPC addressing this contention included an Expert Review dated June 2018 prepared by IEEFA (see [181] above). This submission took issue with the proposition that it was inevitable that there would be continued use of coal-powered power stations in South Korea and that the Project was needed to meet existing coal demand. It contended that the clear change in energy policy by the South Korean government significantly impacts on the long-term economic viability of the Project. KEPCO’s assumed ongoing need for coal in South Korea is disputed. KEPCO responded to some of these propositions in the submission titled Bylong Coal Project Supplementary Information prepared by Hansen Bailey, dated July 2018 (see [182] above).
The next relevant document is the Department’s Final Assessment Report in October 2018. The Department expressed its views about the dispute and the competing contentions of IEEFA and KEPCO in its response. The Department agreed with KEPCO about what was likely to happen in the future and the likely state of South Korean energy policy going forward.
A submission prepared by the Australia Institute in November 2018 which addressed that global demand for coal was falling went to KEPCO’s proposition about the necessity of KEPCO obtaining coal from another source (see [184] above). IEEFA put on a reply to KEPCO’s response in November 2018 which again contested the factual claims about energy and power in South Korea. IEEFA put on a further submission, a briefing note dated April 2019 analysing South Korea’s shift further away from coal (see [183] above).

A meeting was held with the BVPA and the IPC on 12 November 2018. A transcript of that meeting records Mr Buckley’s comments on global coal demand and South Korean dependence on coal reduction. The Steffen Report (above in [186]) explains that, in Mr Steffen’s opinion, the argument that if the Project was disallowed, another new coal resource either in Australia or overseas would be developed to take its place is fundamentally flawed.
The Hansen Bailey March 2019 letter addresses the question of demand for coal and maintains the contention that KEPCO will continue to have a demand for coal and will get it elsewhere (see [187] above).
A few days later, Hansen Bailey sent a further letter dated 8 March 2019. This responded to the EDO’s submission about Rocky Hill. It again maintained the point that if it did not get the coal from this source, it would need to secure an alternative source of coal.
A further letter from Hansen Bailey of 5 July 2019 gave another opportunity for KEPCO to address the issue of alternative sources of coal. It had the opportunity to respond to the various submissions on the topic and it chose to frame its response in a particular way (see [188] above).
These submissions and letters provide the context for what the IPC analysed in pars 693 and 694 of the SOR. The IPC was well aware that it had material before it in the form of KEPCO’s contentions. The IPC did not ignore the material before it. It came to the conclusion that it was not satisfied, based on those competing contentions, that it could make a finding that any contention was true.
Any error on this point is immaterial because the IPC agreed with the approach of Preston CJ in Rocky Hill to the effect that in any event, an unacceptable impact does not become acceptable because KEPCO may end up pursuing an alternative development that has unacceptable impacts (Preston CJ at [545]). The IPC considered it appropriate to proceed without reaching any final view about the likelihood of KEPCO obtaining alternative coal of an inferior quality. The evidence on this topic to which KEPCO points in its submissions was hypothetical and without proper substantiation. The conclusion that this evidence did not allow the IPC to be satisfied that KEPCO would in fact proceed to secure alternative sources of inferior coal was entirely open to the IPC. There is no substance to KEPCO’s complaint that it was denied procedural fairness by not being given a preview of the IPC’s ultimate conclusions on that point. It was readily apparent that the adverse impacts in relation to this matter and the efficacy of the proposed solution were live issues for KEPCO to address. Involving further rounds of consultation in relation to any issue where the IPC was not inclined to be persuaded based on the submitted material would lead to administrative paralysis.
In addition, contrary to the assertion in Ground 9, the finding on this point was not irrational or unreasonable. It reflected the IPC’s consideration of KEPCO’s evidence on the topic which the IPC considered, on the merits, did not support the finding urged by KEPCO. The complaint that this finding was unreasonable or irrational was not developed by KEPCO in submissions in a way that could satisfy the Court that any of the factual conclusions the IPC reached were not open to it, based on the competing contentions that were before it.

Lack of certainty as to “make good” provisions

The issue of “make good” provisions in relation to groundwater impacts arose in the SOR in the context of the AIP. The IPC noted that “there has been no information provided by the Applicant in relation to proposed ‘make good’ measures”. The IPC accepted the submissions of KEPCO and the Department that the drawdown on the aquifer on land owned and operated by KEPCO was to be greater than two metres, which exceeds the maximum drawdown threshold in the AIP. It concluded that the drawdown was an interference with an aquifer exceeding the respective water table threshold under cl 12AB(7) of the Mining SEPP. As a consequence, it came to consider the existence of “make good” provisions at KEPCO’s suggestion. KEPCO did not address in detail how minimal impact considerations were addressed with respect to its land. Whether or not “make good” provisions were adequate was addressed squarely in the material, including whether these provisions would apply to land and bores owned by KEPCO. The IPC was entitled to come to the conclusion on the facts that the ultimate effect of the material before it was uncertain and there was insufficient evidence on that topic for it to conclude that the “make good” provisions were certain and sufficient.
Relevant documents that were before the IPC included submissions provided by the Lock the Gate Alliance from 2015 and November 2018 (see [189] above) addressing the application of the AIP. The Lock the Gate Alliance submitted that when you read the AIP, it applies to any water supply work, irrespective of who owns the property, where there is a drawdown of more than two metres. There is no justification for limiting the evaluation of the mine’s impact to land not owned by the mine. This presented a problem for KEPCO because its response throughout the assessment process had been to focus on how the AIP applied to land owned by others and its intention to make good any problems for those landowners. Other relevant documents are outlined in [189]-[191] above.

Nature of proposed greenhouse gas mitigation measures

The IPC’s concern is about the impact of Scope 3 emissions, namely the downstream burning of coal which will produce something approaching 200 million tonnes of carbon dioxide over the life of the Project. This is a critical environmental impact. The issue raised by KEPCO regarding Scope 3 GHG emissions is artificial. The sole basis for KEPCO’s complaint appears to be that the IPC alluded to the fact that the GHG Management Plan seemed to relate only to Scope 1 and 2 emissions but did not resolve one way or another whether it was so confined. In oral submissions KEPCO suggested this was an irrational conclusion because that GHG Management Plan did in fact deal with Scope 3 emissions. This is factually wrong. The types of emissions KEPCO alluded to in making that submission were marginal in nature. The Scope 3 emissions addressed in KEPCO’s GHG Management Plan are separated into indirect emissions associated with the production and transport of fuel and separately the use of thermal coal. None of the measures contemplated to minimise GHG emissions capture off-site Scope 3 emissions. The conditions proposed by the Department also failed to address Scope 3 emissions. Condition 19(d) proposed by the Department was to “implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site”. This contemplates onsite emissions which are Scope 1 and 2, and therefore does not consider Scope 3 emissions.
The lack of attention to Scope 3 emissions is made clear in submissions addressed to the IPC on this topic. Doctors for the Environment noted that Scope 3 emissions had not been properly addressed (see [194] above). This was picked up in meetings with the IPC, as shown in meeting transcripts (see [193] above). The submission of Chalk & Fitzgerald on behalf of the Lock the Gate Alliance also called for closer scrutiny to be placed on Scope 3 emissions (see [193] above). The Hansen Bailey March 2019 letter sought to engage with the criticisms that had been made about Scope 3 emissions and incompatibility of the Project with the NSW CCPF and the Paris Agreement. It is clear that there had been a series of submissions on this topic and KEPCO had been given the opportunity to respond.
KEPCO had every opportunity to put forward a GHG Management Plan that addressed concerns about Scope 3 emissions. In the circumstances, any supposed error in failing to reach a more certain conclusion in that regard was immaterial to the IPC’s conclusions.

Grounds 8 and 9 not established

I agree with the BVPA that these grounds are an attempt to canvas merit issues in the guise of judicial review grounds alleging failure to accord procedural fairness, failing to consider cogent evidence concerning likely impacts of the proposed mine, not telling KEPCO of adverse conclusions and irrationality in relation to the IPC’s consideration of alternative sources of coal in particular.
Alphaone in the Full Federal Court, cited with approval in SZBEL by the High Court (Alphaone was identified in Ex parte Palme at [22] in setting out a party’s submissions but did not arise squarely in the reasoning of the High Court) can, and indeed must, be accepted. However, the circumstances of the exhaustive assessment process outlined in the BVPA’s submissions in the four areas identified do not come close to establishing a denial of procedural fairness to KEPCO in the areas complained of, or to establishing that the IPC failed to advise of an adverse conclusion not obviously open on the evidence. There is a substantial difference between the factual matters informing the authorities relied on by KEPCO and what actually happened before the IPC in considering the Project and the Recommended Revised Project.
In Alphaone, the Commissioner for ACT Revenue appealed the successful judicial review of their refusal to grant a licence to Alphaone Pty Ltd on the basis that it was not a fit and proper person to hold the licence it had applied for. The Full Federal Court was addressing the question of the extent to which a decision-maker must, as a matter of fairness, invite a response from an applicant to its evaluation of an application. In SZBEL citing Alphaone at [27] to the effect that the rules of procedural fairness require a party affected to be given the opportunity of ascertaining relevant issues and to be informed of the nature and content of adverse material, the High Court unanimously held that the Refugee Review Tribunal had not accorded procedural fairness to an applicant because he was not given an opportunity to address it on a determinative issue. It is useful to note that the High Court at [48] cited with approval Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 (La Roche) at 369 as follows:

… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

To similar effect, the BVPA cited Alphaone at 591-592, Powerlift at 365-366, Pilbara ALCAC at [63]-[73], and S154 at [54], [57]-[58] in support of its submission that procedural fairness does not require a decision-maker to put its thought process or preliminary conclusions to an applicant for comment.
It is frankly difficult to see how the Alphaone principle approved in SZBEL can apply to what was clearly a thorough assessment process undertaken by the IPC in relation to the four topics the subject of these two grounds, as I discuss below.
The nature of the development assessment and approval process under the EPA Act is important context informing the IPC’s obligations as the consent authority. On any view, the assessment process of this SSD proposal was exhaustive and took place over a number of years, including in relation to the four areas the source of complaint in these grounds of review. The steps are summarised in the SOAF extracted in [10] above.
KEPCO’s submissions relied on the parts of the SOR in each of the four areas complained of as set out in [197]-[198] above where the IPC identified there was insufficient evidence on a particular topic as part of determining to refuse consent. The BVPA identified in its submissions evidence of where each of the four areas were the subject of submissions before the IPC, drawing in turn on the evidence outlined in [180]-[194] above. Aboriginal cultural heritage impacts were referred to in [207]-[209] above of the BVPA submissions, referring in turn to relevant evidence in [180] above. The issue of alternative sources of coal was referred to in [210]-[219] above of the BVPA submissions, referring in turn to relevant evidence in [181]-[188] above. The issue of “make good” aquifer is referred to in [221]-[222] above of the BVPA submissions, referring in turn to relevant evidence in [189]-[191] above. The issue of mitigation of GHG emissions is referred to in [223]-[225] above of the BVPA submissions, referring in turn to relevant evidence in [192]-[194] above.
KEPCO’s submissions in relation to Aboriginal cultural heritage issues are particularly weak for the reasons given by BVPA. That an agreement had been reached by KEPCO with the OEH as to how that issue would be managed, which effectively postponed assessment of how protection of Aboriginal cultural heritage would be dealt with according to the SOR in par 516 and as identified in numerous submissions to the IPC, does not bind the IPC in any way on how that issue should be determined. Nor does that agreement in any way require the IPC to tell KEPCO that it did not agree before coming to its own conclusion on the matter.
Considering alternative sources of coal, the complaint is twofold, a failure to accord procedural fairness and to consider the Hansen Bailey March 2019 letter (Ground 8) and that the IPC acted irrationally (Ground 9). The latter is really a complaint that the IPC did not adopt KEPCO’s submissions on that topic based on the Hansen Bailey March 2019 letter. The IPC considered this letter in pars 674-676, 684 of the SOR. In any event, this is a merits assessment matter. There was extensive competing material before the IPC on that subject. It was not bound to adopt KEPCO’s consultant’s position. Not preferring KEPCO’s view does not give rise to any basis to argue irrationality, a ground which has a high bar in order to succeed: Peko-Wallsend at 41-42. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: Li at [76].
In relation to “make good” aquifer issues, there is extensive discussion of the issue of whether the obligation in the AIP applied to that part of the aquifer located on KEPCO’s land or only that located outside KEPCO’s land. Consideration of that material to conclude there was not sufficient evidence to satisfy the IPC on that matter was a course open to it in the execution of its assessment function.
In relation to GHG mitigation measures, substantial material was provided to the IPC and numerous submissions were received in relation to that topic.
If KEPCO’s arguments are upheld, the development assessment process under the EPA Act would become unworkable in terms of resources required and time taken to reach a decision and achieving finality, a key plank of the development approval process. KEPCO is the applicant for development approval. Natural justice requirements suggest that it have adequate opportunity to present material it sees fit to the IPC. The evidence suggests that KEPCO had more than ample opportunity to present what it wished to the IPC on the identified topics, all of which were well known to KEPCO. The evidence does not provide any basis for suggesting the IPC failed to evaluate the DA, including accompanying documents. There was no demonstrated failure by the IPC to take account of cogent evidence available to it, KEPCO citing SZMTA and SZRKT for that submission – indeed, none is identified. Once again, the facts in those cases are far removed from the IPC process of assessment I am considering. The cogent evidence I infer would be what Mr Bailey would have provided if asked. That material is in a different category, as I refer to next.
Another key submission of BVPA which I adopt is that KEPCO could not have been surprised by the IPC considering the issues in the manner that it did. That Mr Bailey could have plugged any identified gaps in information is immaterial. A related submission of the BVPA which I accept is that there can be no failure to accord procedural fairness to a person not satisfied with the ultimate result, here a refusal of development consent, if that person essentially submits that they would have taken a different approach.
The quote of Lord Diplock in La Roche cited in SZBEL (above in [228]) highlights the difficulty of KEPCO’s grounds based on failure to accord procedural fairness because KEPCO says it was unaware that there were areas that the IPC considered were not adequately demonstrated to its satisfaction. In Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288, Mason P stated at [267] that to suggest there is a right for all affected parties to see all adverse submissions of all other persons putting in submissions would be unworkable, because it would lead to “an infinite regression of counter-disputation”, and in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299; [2008] NSWCA 356, Spigelman CJ at [84] confirmed that a decision-maker receiving submissions is not generally subject to a duty to disclose a proposed conclusion, unless it is of a character that could not reasonably be anticipated (cited in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 per Biscoe J at [180]).
Returning to the authorities set out in KEPCO’s submissions, breaches of the assessment required under s 4.15 as identified in Hale do not arise on the facts here, as the BVPA submitted in [203] above. The IPC did acquaint itself with material which enabled it to consider the material matters in issue. Once again Weal, which concerned a deferred commencement condition in a development consent, does not provide a useful description of the duty imposed on a consent authority where it determines a refusal is appropriate.
There was nothing legally unreasonable in the IPC’s decision-making in relation to alternative sources of coal. To assert that there was only one conclusion open on the evidence is a complaint about a merits matter, an impermissible consideration in these proceedings. Consequently, statements in Fattah have no relevance here.
Grounds 8 and 9 are not established.

Conclusion

In my findings above I considered it necessary to address the issue of materiality in relation to Grounds 1, 3 and 6 and have done so. I did not consider it necessary to consider materiality in relation to Grounds 2, 4, 7, 8 and 9.
As KEPCO has been unsuccessful in its grounds of review its summons should be dismissed.
The usual costs rule in judicial review proceedings is that costs follow the event. The BVPA (the Second Respondent) as the successful party should have its costs paid by KEPCO (the Applicant). The IPC (the First Respondent) filed a submitting appearance save as to costs. Before making a costs order, the IPC should have the opportunity to advise if it wishes to make any submissions on costs. If not, the costs order I have indicated will be made. A timetable will be discussed with the parties.

Orders

The Court orders:

The Applicant’s Further Amended Summons filed 3 June 2020 is dismissed.

Costs are reserved.

The exhibits are returned.

**********

Decision last updated: 22 December 2020

Medium Neutral Citation:	KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) [2020] NSWLEC 179
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Applicant’s Further Amended Summons filed 3 June 2020 is dismissed. (2) Costs are reserved. (3) The exhibits are returned.
Catchwords:	JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent for new coal mine – state significant development – construction and application of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 in assessment of greenhouse gas impacts of new coal mine – no failure to refer project to Minister for Regional Water for advice as required by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requirements in considering impacts on water resources – no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternative sources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed
Legislation Cited:	Associations Incorporation Act 2009 (NSW) Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) reg 19 Environmental Planning and Assessment Act 1979 (NSW) ss 1.3, 2.2, 2.7, 2.8, 2.9, 4.5, 4.6, 4.15, 4.18, 4.36, 4.38, 4.40, former ss 23B, 89D Environmental Planning and Assessment Amendment Act 2017 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) reg 100 Interpretation Act 1987 (NSW) s 33 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cll 2, 12AA, 12AB, 12, 12A, 13, 14, 15, 16, 17, 17B State Environmental Planning Policy (State and Regional Development) 2011 cl 8A, Sch 1 Uniform Civil Procedure Rules 2005 (NSW) r 6.24
Cases Cited:	Al Maha v Huajan Investments (2018) 233 LGERA 170; [2018] NSWCA 245 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Alexandria Landfill v Transport for NSW [2020] NSWCA 165 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31 Ballas v Department of Education (State of NSW) [2020] NSWCA 86 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343 Ex parte King; Re Blackley (1938) 38 SR (NSW) 483 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Fattah v Minister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31 Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160; [2015] NSWLEC 61 Gilbank v Bloore (No 2) [2012] NSWLEC 273 Gloucester Resources v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38 Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 1 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 P&C Cantarella Pty Ltd v Egg Marketing Board for the State of NSW [1973] 2 NSWLR 366 Parramatta City Council v Hale (1982) 47 LGERA 319 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000] FCA 1113 Plaintiff M61/2010E v the Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40 FCR 332 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299; [2008] NSWCA 356 Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Wollar Progress Association Incorporated v Wilpingjong Coal Pty Ltd [2018] NSWLEC 92
Category:	Principal judgment
Parties:	KEPCO Bylong Australia Pty Ltd (Applicant) Independent Planning Commission (First Respondent) Bylong Valley Protection Alliance Incorporated (Second Respondent)
Representation:	COUNSEL: R Lancaster SC and D Hume (Applicant) Submitting appearance (First Respondent) S Free SC and R McEwen (Second Respondent) SOLICITORS: Minter Ellison (Applicant) Crown Solicitor’s Office (First Respondent) Environmental Defender’s Office (Second Respondent)
File Number(s):	19/392909