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Rivers SOS Inc v Minister for Planning

Rivers SOS Inc v Minister for Planning

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Case Copied 16 December 2009 82 min read

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Land and Environment Court

of New South Wales

CITATION: Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213

PARTIES:
APPLICANT
Rivers SOS Inc
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
Helensburgh Coal Pty Limited

FILE NUMBER(S): 40691 of 2009

CORAM: Preston CJ

KEY ISSUES: JUDICIAL REVIEW :- approval of underground coal mining project - approval under Part 3A of Environmental Planning and Assessment Act 1979 - approval subject to conditions - condition requiring written approval of Director-General before undermining certain swamps - whether constructive failure to decide or invalid delegation in relation to undermining of swamps - whether required statutory notice given to Sydney Catchment Authority before approving project - whether State environmental planning policies (SEPPs) apply to the exercise of power to approve project under Part 3A - whether a provision requiring consideration of certain matters in a particular SEPP concerning mining applied to approval of project under Part 3A - whether condition requiring suitable offsets to compensate for impacts lacked finality or resulted in significantly different project - whether failure to hold public hearing in relation to a proposed revised mine plan in breach of statutory provisions or rules of natural justice.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, Part 3, Part 3A, Part 4, s 4, s 23D, s 75A, s 75B, s 75C, s 75E, s 75F, s 75H, s 75I, s 75J, s 75R, s 77, s 80
Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Act 2005
Mining Act 1992, s 74
Sydney Water Catchment Management 1998, s 47

CASES CITED: Annetts v McCann (1990) 170 CLR 596
Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537
Butler v Johnston (1984) 4 FCR 83
Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 392; (2007) 155 LGERA 291
Geelong Community for Good Life Inc v Environmental Protection Agency [2008] VSC 185; (2008) 20 VR 338
GPT RE Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185
Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70
Kingcole Hobart Properties Pty Ltd v Planning Appeal Board (1992) 78 LGERA 289
Kioa v West (1985) 159 CLR 550
Lawyers for Forests Inc v Minister for Environment, Heritage and Arts [2009] FCAFC 114; (2009) 168 LGERA 220
Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245; (1999) 110 LGERA 352
Re National Parks and Nature…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWLEC 213
Decision Date: 16 December 2009

CaseChat Overview and Summary

The applicant, Rivers SOS Inc, an incorporated association of about 40 environmental and community groups across NSW, sought judicial review of the approval given by the Minister for Planning, under Part 3A of the Environmental Planning and Assessment Act 1979, of the Metropolitan Coal Project which involved underground longwall mining by the proponent at the Metropolitan Colliery. The applicant's challenge was based on five grounds. The first was that the Minister had failed to make a decision to approve or disapprove the carrying out of the Project to the extent that it related to swamps 76, 77 and 92 or, alternatively, invalidly delegated the responsibility for determining that part of the Project application to the Director-General. The second was that the Minister exercised the function to approve the Project without complying with the notice requirements of s 47(3) of the Sydney Water Catchment Management 1998 Act. The third was that the Minister failed to comply with the provisions of cl 12 of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 before approving the Project. The fourth was that the Minister failed to determine the Project application in that Condition 6 of Schedule 6 of the approval failed to deal adequately with the issue of the mitigation of impacts of the Project on the Woronora Catchment. The fifth was that the Minister approved the Project with the revised mine plan proposed in a preferred project report submitted to the Director-General which differed substantially from the mine plan which had been the subject of submissions by the public and public authorities and a public hearing by the Planning and Assessment Commission, in breach of the statutory requirements relating to the Planning and Assessment Commission conducting a public hearing into the Project or, alternatively, the principles of natural justice. The Minister and the proponent of the Project, Helensburgh Coal Pty Limited, contested each of the five grounds. Preston CJ dismissed the proceedings and rejected all of the grounds of challenge. On ground 1, the court found that the Minister had approved the carrying out of the whole of the Project, including the undermining of swamps 76, 77 and 92, and had imposed conditions upon the approval of the Project, which regulated the carrying out of the approved project. On ground 2, the court found that the Minister had given notice to the Sydney Catchment Authority as required by s 47 of the Sydney Water Catchment Management 1998 Act. On ground 3, the court found that cl 12 of the Mining SEPP did not apply to the Minister's exercise of power under s 75J(1) to approve or disapprove the carrying out of the Project. On ground 4, the court found that Condition 6 of Schedule 6 did not cause the approval to lack finality. On ground 5, the court found that the Planning and Assessment Commission was not obliged to hold a public hearing in relation to the preferred project report, either the April version or the May version.

Orders