Stratford Coal Pty Ltd v Minister for Planning

[2019] NSWLEC 8

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stratford Coal Pty Ltd v Minister for Planning [2019] NSWLEC 8
Hearing dates:	13-17, 20-24, 27-28 August 2018
Date of orders:	08 February 2019
Decision date:	08 February 2019
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: (1)   The appeal is dismissed. (2)   Modification application “Stratford Extension Project Modification-1” submitted by Stratford Coal Pty Ltd is determined by refusing to modify the development consent (SSD 4966) for the Stratford Extension Project granted by the Planning Assessment Commission, as delegate for the Minister for Planning, on 29 May 2015.
Catchwords:	APPEAL – modification application – modification of consent to transport and process coal from another mine – consent for other mine refused – no purpose in modification application as a consequence – modification application refused
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
Category:	Principal judgment
Parties:	Stratford Coal Pty Ltd (Applicant) Minister for Planning (First Respondent) Groundswell Gloucester Inc (Second Respondent)
Representation:	Counsel: Mr R Beasley SC, Ms A Mitchelmore SC (Applicant) Ms K Stern SC, Ms T Phillips, Mr M Sherman (Respondent) Mr R White (Second Respondent)   Solicitors: Minter Ellison (Applicant) Department of Planning and Environment (Respondent) Environmental Defenders Office (Second Respondent)
File Number(s):	2018/23580
Publication restriction:	Nil

Judgment

1. Stratford Coal Pty Ltd (“Stratford Coal”) is the owner and operator of the Stratford Coal mine south of the town of Gloucester (“the Stratford Mining Complex”).

2. The Stratford Mining Complex has been in operation since 1995 following the Minister for Planning granting consent to development application DA 73/94 under the Environmental Planning and Assessment Act 1979 (“EPA Act”) in December 1994. On 29 May 2015, the Planning Assessment Commission (“the Commission”), as delegate for the Minister, granted consent to State significant development application 4966 for an extension of operations at the Stratford Mining Complex (“the Stratford Extension Project consent”).

3. On 15 August 2016, Stratford Coal lodged an application under the then s 96(2) of the EPA Act to modify the Stratford Extension Project consent, primarily to receive and process coal from the proposed Rocky Hill Coal Project located to the north of the Stratford Mining Complex and to transport that coal by rail from the Stratford Mining Complex to the Port of Newcastle (“the modification application”). The modification application also sought approval to incorporate a new haul road (associated with the transport of coal from the Rocky Hill Coal Project to the Stratford Mining Complex), to extend the use of its processing and transport activities to approximately 2034 (being the expected mine life of the Rocky Hill Coal Project) and to extend its mine life by approximately 3 years to 2028.

4. The Planning Assessment Commission, as delegate of the Minister for Planning, refused both the application for consent for the Rocky Hill Coal Project and the application to modify the Stratford Extension Project consent. The Commission’s reasons for refusing the modification application, given in the Notice of Refusal of Modification Application dated 14 December 2017, were threefold:

“1. the application is intrinsically linked to the Rocky Hill Coal Project;

2. the Commission has refused the Rocky Hill Coal Project; and

3. the application has no critical purpose related to the operation of the Stratford Extension Project in the absence of approval for the Rocky Hill Coal Project.”

5. The proponent of the Rocky Hill Coal Project, Gloucester Resources Limited (GRL), appealed against the Commission’s refusal of consent to the development application for the Rocky Hill Coal Project. Stratford Coal appealed against the Commission’s refusal of the application to modify the Stratford Extension Project consent. Both appeals were heard by the Court at the same time.

6. Stratford Coal accepted that its modification application has no critical purpose or utility in the absence of the Rocky Hill Coal Project. Accordingly, Stratford Coal accepted that if the Court determines to refuse consent to GRL’s application for the Rocky Hill Coal Project and dismiss GRL’s appeal, the Court would also refuse Stratford Coal’s modification application and dismiss its appeal.

7. I have determined in GRL’s appeal that GRL’s application for the Rocky Hill Coal Project should be determined by refusal of consent to the application and GRL’s appeal should be dismissed: Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7. In these circumstances, there is no purpose or utility in Stratford Coal’s application to modify the Stratford Extension Project consent. There will be no coal from the Rocky Hill Coal Project to be transported by the haul road to the Stratford Mining Complex, processed at the Stratford Mining Complex or transported by rail to the Port of Newcastle. Stratford Coal’s modification application should therefore be refused and its appeal dismissed.

Orders

8. The Court orders:

1. The appeal is dismissed.

2. Modification application “Stratford Extension Project Modification-1” submitted by Stratford Coal Pty Ltd is determined by refusing to modify the development consent (SSD 4966) for the Stratford Extension Project granted by the Planning Assessment Commission, as delegate for the Minister for Planning, on 29 May 2015.

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